# Markiewicz v. Galloway, Johnson, Tompkins, Burr and Smith APLC

> District Court, E.D. Louisiana · October 18, 2022

URL: https://www.frixlaw.com/law-library/cases/10188447

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** October 18, 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/10188447

## How later opinions describe it (automated extraction)

- noting the ADA’s incorporation of the exhaustion procedures applicable to Title VII claims

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

APRIL MARKIEWICZ CIVIL ACTION

VERSUS NO: 20-805

GALLOWAY, JOHNSON, TOMPKINS,
SECTION: "A" (4)
BURR, AND SMITH, APLC

ORDER AND REASONS

Before the Court is a Motion for Summary Judgment (Rec. Doc. 40) and a Motion
in Limine (Rec. Doc. 42), both filed by the defendant, Galloway, Johnson, Tompkins, Burr,
and Smith, APLC. The plaintiff, April Markiewicz, opposes the motions. The motions,
submitted for consideration on July 20, 2022 and August 3, 2022, are before the Court on
the briefs without oral argument. For the reasons that follow, the motion for summary
judgment is GRANTED IN PART AND DENIED IN PART, and the motion in limine is
GRANTED IN PART AND DENIED IN PART.
I. BACKGROUND
Ms. April Markiewicz, the plaintiff herein (hereinafter “Markiewicz” or “Plaintiff”), has
brought this action against her former employer, the Galloway, Johnson, Tompkins, Burr,
and Smith law firm (hereinafter “Galloway”), alleging numerous violations of federal law.
Markiewicz was employed by Galloway as a legal assistant from April 3, 2008, until her
termination on June 2, 2019. Although by Markiewicz’s own admission she had been
threatened with termination for years leading up to her actual termination in 2019, (Rec. Doc.
6, Amended Complaint ¶¶ 25, 28), Markiewicz contends that Galloway ultimately terminated

Page 1 of 36
her employment because she used FMLA1 leave in May of 2019, and that Galloway’s
proffered non-leave-related reason for terminating her is a pretext for retaliation. Fueling
Markiewicz’s claim of retaliation is the fact that Galloway fired her just three weeks after she
returned to work following her FMLA leave, which she had taken due to her husband’s
cancer treatment.
Markiewicz brings a second claim under the FMLA for interference with her right to
take additional FMLA leave. Markiewicz contends that she had requested more FMLA leave
following her return to work in May 2019, this time due to her own medical issues, but she

was discharged and therefore not allowed to use the requested leave. Thus, the FMLA
claims relate to Markiewicz’s husband’s cancer treatment, as well as her own numerous
health conditions, and both claims (retaliation and interference) are tethered to the
termination decision.2
As to her own numerous health issues, Markiewicz contends that they constituted
disabilities for purposes of the ADA.3 Markiewicz claims that while employed at Galloway
she was harassed because of those disabilities and denied accommodations, all in violation
of the ADA.
Finally, Markiewicz claims that she was subjected to gender-based harassment by
her female supervisors while employed at the law firm, and that this harassment resulted in a

1 Family Medical Leave Act, 29 U.S.C. § 2601, et seq.

2 As later explained in more detail, the interference claim described above is not the same
interference claim that Markiewicz pleaded in her Amended Complaint, which was filed by her
former attorney. In July 2021, Markiewicz’s first attorney withdrew from the case and her current
counsel enrolled to take over the representation. (Rec. Doc. 20, Order).

3 Americans with Disabilities Act, 42 U.S.C. § 12101, et seq.

Page 2 of 36
hostile work environment. Presumably, Markiewicz has brought this claim under Title VII, 42
U.S.C. § 2000e, et seq.4
Galloway now moves for judgment as a matter of law on all claims, and to exclude
certain evidence at trial should the Court decline to grant its motion for summary judgment in
its entirety.5
A jury trial had been scheduled to commence on September 19, 2022, but the Court
continued the trial in light of a conflicting criminal matter. (Rec. Doc. 55, Order). The Court
advised the parties that a trial date would be set if any part of the case survives the pending

motion for summary judgment. (Rec. Doc. 56, Minute Entry).
The parties’ contentions are addressed below.
II. DISCUSSION—MOTION FOR SUMMARY JUDGMENT
Summary judgment is appropriate only if "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any," when viewed in
the light most favorable to the non-movant, "show that there is no genuine issue as to any
material fact." TIG Ins. Co. v. Sedgwick James, 276 F.3d 754, 759 (5th Cir. 2002) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)). A dispute about a material
fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the
non-moving party. Id. (citing Anderson, 477 U.S. at 248). The court must draw all justifiable
inferences in favor of the non-moving party. Id. (citing Anderson, 477 U.S. at 255). Once the

4 Neither the pleadings nor the opposition to the motion for summary judgment expressly refers
to Title VII.

5 Galloway explains that it filed its motion in limine out of an abundance of caution should the
Court decline to dispose of the case in its entirety on summary judgment. Further, if the Court
grants summary judgment on the ADA and Title VII claims in particular, Galloway posits that the
challenged evidence would be especially irrelevant to the remaining FMLA claims.

Page 3 of 36
moving party has initially shown "that there is an absence of evidence to support the non-
moving party's cause," Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), the non-movant
must come forward with "specific facts" showing a genuine factual issue for trial. Id. (citing
Fed. R. Civ. P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587
(1986)). Conclusional allegations and denials, speculation, improbable inferences,
unsubstantiated assertions, and legalistic argumentation do not adequately substitute for
specific facts showing a genuine issue for trial. Id. (citing SEC v. Recile, 10 F.3d 1093, 1097
(5th Cir. 1993)).

When faced with a well-supported motion for summary judgment, Rule 56 places the
burden on the non-movant to designate the specific facts in the record that create genuine
issues precluding summary judgment. Jones .v Sheehan, Young, & Culp, P.C., 82 F.3d
1334, 1338 (5th Cir. 1996). The district court has no duty to survey the entire record in
search of evidence to support a non-movant’s position. Id. (citing Forsyth v. Barr, 19 F.3d
1527, 1537 (5th Cir. 1992); Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1307 (5th Cir.
1988)).
A. FMLA Claims
As outlined above, Markiewicz seeks relief under the FMLA based on two legal
theories, one for retaliation and one for interference. Both claims are grounded on her
termination from Galloway on June 2, 2019.
Under the FMLA, 29 U.S.C. § 2601, et seq., eligible employees are guaranteed the
right to take “reasonable leave” for medical reasons, and for the care of a spouse who has a
“serious health condition.” Id. § 2601(b)(2). An eligible employee shall be entitled to a total of
12 workweeks of leave during any 12-month period in order to care for a spouse with a

Page 4 of 36
serious health condition, or because of a serious health condition that makes the employee
unable to perform the functions of the position of such employee. Id. § 2612(a)(1)(C), (D).
Upon the employee’s timely return to work following FMLA leave, the employer must restore
the employee to the position of employment held by the employee when the leave
commenced. Id. § 2614(a)(1)(A) (conferring the right to “job restoration”).
The FMLA makes it unlawful for any employer to interfere with, restrain, or deny the
exercise of or the attempt to exercise, any right provided by the FMLA, id. § 2615(a)(1),
including the right to job restoration upon returning to work. The FMLA also makes it unlawful

for any employer to discharge or in any manner discriminate against any individual for
opposing any practice made unlawful under the FMLA. Id. § 2615(a)(2). Thus, an employer
may neither interfere with an employee’s efforts to use FMLA leave nor retaliate against or
penalize an employee on account of an employee’s exercise of FMLA rights. But importantly,
the FMLA does not immunize an employee who is subject to termination for poor job
performance—an employee may be validly terminated for non-FMLA reasons regardless of
FMLA leave status or attempts to use FMLA leave.6 See Anderson v. Nations Lending
Corp., 27 F.4th 1300, 1304 (5th Cir. 2022) (citing Simpson v. Office of the Chief Judge, 559
F.3d 706, 713 (7th Cir. 2009)).
The Court begins by addressing whether Markiewicz has a separate and distinct
claim for FMLA interference or whether her sole recourse lies in FMLA retaliation, which is

6 Furthermore, an employer may require the employee to use accrued paid vacation leave or
medical leave for any part of the guaranteed 12-week period. 29 U.S.C. § 2612(d)(2)(A)-(B). The
Court makes this point because Markiewicz has specifically criticized Galloway for at times
charging her accrued PTO (paid time off) without her authorization when she missed work and
for “pressuring” her to use PTO, (Amended Complaint ¶ 16), neither of which are actionable nor
indicative of FMLA animus.

Page 5 of 36
Galloway’s position. As noted above, both of Markiewicz’s FMLA claims are tethered to the
termination decision although this is not how Markiewicz originally pleaded her case. The
FMLA interference claim that Markiewicz pleaded when represented by her former counsel,
assuming that Count 2 of the Amended Complaint is the interference claim (it is not
expressly identified as such and the term “interference” is not used anywhere in the
Amended Complaint), was based on the allegation that Galloway had failed to notify
Markiewicz of her FMLA rights as required by federal law, presumably when she took
significant amounts of leave in 2018. But this particular type of interference claim (failure to

notify or counsel as to FMLA rights) requires proof of prejudice, Carter v. St. Tammany Ph.
Sch. Bd., No. 2130237, 2022 WL 485197, at *1 (5th Cir. Feb. 17, 2022) (citing Cuellar v.
Keppel Amfles, LLC, 731 F.3d 342, 347 (5th Cir. 2013); Bryant v. Tex. Dep’t of Aging &
Disab. Servs., 781 F.3d 764, 770 (5th Cir. 2015)), and Galloway seized upon this failure in
Markiewicz’s evidence—nothing in the record suggests prejudice deriving from the failure to
notify insofar as the leave taken in 2018 or in 2019 is concerned—when moving for summary
judgment.7

7 As to the 2018 absences and the alleged failure to notify, Galloway points out that there has
been no showing that the time that Markiewicz was out of the office even qualified for FMLA
leave with the exception of a day or two. It is clear from Markiewicz’s deposition testimony that
she cannot establish that the significant amount of time that she took off in 2018 would have
qualified for FMLA leave. Markiewicz kept no log, no calendar, and could not even recall how
many times the absences related to her husband’s medical appointments. (Rec. Doc. 40-3,
Markiewicz deposition at 60-62). She described the pertinent timeframe as a blur. (Id. at 46).
The record does contain an email dated March 9, 2018, from Markiewicz to two other
office staffers in which she explains that in 2018 she and her husband would be able to fly free
that year (an opportunity based on her grandfather’s retirement from the airlines), and that she
and her husband planned to take advantage of that opportunity to travel to see family. (Rec. Doc.
40-3 at 124, Exhibit A-6). In the email Markiewicz acknowledges that normally she would never
take so much time off but she may never get free tickets again. (Id. at 125).
To be clear, Markiewicz was never denied leave in 2018. And the Court agrees with
Galloway’s contention that the FMLA does not protect Markiewicz’s decision to take advantage

Page 6 of 36
In her opposition, Markiewicz has attempted to pivot as to the basis for her
interference claim now arguing that her interference claim is grounded on the fact that shortly
before she was terminated in 2019 (after returning from FMLA leave due to her husband’s
illness), she requested more FMLA leave in order to address her own health issues, and that
by terminating her Galloway “interfered” with her right to use FMLA leave. It is no surprise
that Galloway has objected to Markiewicz’s attempt to morph her interference claim in
response to the motion for summary judgment and contends that this new interference claim,
which turns on the validly of the termination itself, is simply a repackaged retaliation claim

that would unfairly allow Markiewicz to prevail based on a reduced burden of proof. See
Cuellar, 731 F.3d at 349 (Elrod, J., concurring) (observing that discriminatory intent is not an
element of an interference claim). The Court agrees.
First, the Court is persuaded that it would be unfair to allow Markiewicz to recast her
FMLA interference claim in response to Galloway’s meritorious arguments regarding the
interference claim actually pleaded. Given that Markiewicz cannot establish an essential
element of her interference claim grounded on the failure to provide notice of FMLA rights,
i.e., prejudice, the motion for summary judgment will be granted as to the interference claim.
Second, even if Markiewicz had amended her pleadings to assert her new theory of
FMLA interference, summary judgment would nonetheless be appropriate because in her
particular case the retaliation claim and interference claim dovetail into one claim. The
damage triggering event for both claims is the termination and the damages sought for both

of free airfare for herself and her husband to travel extensively, even if motivated by the desire to
spend more time together in light of Mr. Markiewicz’s diagnosis. And by 2019 Markiewicz had
requested and was approved for FMLA leave so the alleged failure to notify/counsel resulted in
no prejudice for that year.

Page 7 of 36
claims are the same (wage loss, and benefit loss prospectively following the termination).
And even though interference and retaliation generally constitute two separate and distinct
legal theories under the FMLA, the overlapping of those theories in this case is obvious
when one considers that the outcome of the two claims cannot differ. If the jury determines
that Markiewicz was legitimately terminated for non-FMLA reasons then the retaliation claim
fails as well as the interference claim. An interference claim depends on proof that the
employer denied what the employee was entitled to under the FMLA but an employee who is
legitimately terminated is not entitled to future FMLA leave.

Similarly, if Markiewicz prevails on her retaliation claim, meaning that she was not
legitimately terminated for non-FMLA reasons, then she will prevail on her interference
claim—yet she cannot recover her damages twice. In substance, Markiewicz’s claims are
that she was punished by termination for exercising her right to use FMLA leave (for her
husband’s illness) and also for attempting to exercise that right by taking more leave in the
future. In other words, Markiewicz’s retaliation claim encompasses both past and future
FMLA leave. Her claim is one for retaliation and therefore Markiewicz cannot prevail without
proving discriminatory intent. Allowing Markiewicz to change her interference claim at this
juncture to ground it on the termination itself would essentially allow her to prevail on her
retaliation claim by relieving her of the burden of proving discriminatory intent, which is
simply not fair to Galloway given the advanced stage of this litigation.
The Court now turns to Markiewicz’s FMLA retaliation claim.
In the absence of direct evidence of retaliatory intent, the familiar McDonnell Douglas
burden-shifting framework applies to FMLA retaliation claims. Park v. Direct Energy GP,
LLC, 832 Fed. Appx. 288, 295 (5th Cir. 2020). Under this framework, the plaintiff must first

Page 8 of 36
establish a prima facie case of retaliation by showing that 1) she engaged in a protected
activity, 2) the employer discharged her, and 3) there is a causal link between the protected
activity and the discharge. Id. (citing Amedee v. Shell Chem., L.P., 953 F.3d 831, 835 (5th
Cir. 2020)). If the plaintiff makes a prima facie case, the burden shifts to the employer to
articulate a legitimate, nonretaliatory reasons for its decision. Id. This burden is one of
production, not persuasion, and it involves no credibility assessment. Id. (citing Musser v.
Paul Quinn Coll., 944 F.3d 557, 561 (5th Cir. 2019)).
Once the employer gives a legitimate reason, the burden shifts back to the plaintiff to

prove that the employer’s stated reason is a pretext for retaliation. Id. (citing Amedee, 953
F.3d at 835). To avoid summary judgment on the issue of pretext, the plaintiff must show that
there is a “conflict in substantial evidence” on this issue. Id. (quoting Musser, 944 F.3d at
561). Evidence is substantial if it is of such quality and weight that reasonable and fair-
minded persons in the exercise of impartial judgment might reach different conclusions. Id.
The ultimate determination in every case is whether viewing all of the evidence in the light
most favorable to the plaintiff, a reasonable factfinder could infer discrimination. Owens, 33
F.4th at 826 (citing Crawford v. Formosa Plastics Corp., 234 F.3d 899, 902 (5th Cir. 2000)).
For purposes of its motion for summary judgment, Galloway assumes that Plaintiff
presents a prima facie case of FMLA retaliation. (Rec. Doc. 40-1, Memorandum in Support
at 9). Galloway’s proffered non-retaliatory reason for terminating Markiewicz is that she
violated the firm’s written policy pertaining to mandatory clocking out for lunch breaks after
she had specifically been reprimanded on at least one prior occasion for violating the policy.
This constitutes a legitimate, non-discriminatory reason for discharge.8

8 Markiewicz mischaracterizes the lunch break issue by suggesting that she was terminated for

Page 9 of 36
The burden now shifts back to Markiewicz to show that there is a “conflict in
substantial evidence” on the issue of whether Galloway’s stated reason for discharge is a
pretext for retaliation. Markiewicz may rely on circumstantial evidence, including evidence of
disparate treatment or evidence tending to show that Galloway’s explanation is “unworthy of
credence.” Owens, 33 F.4th at 826 (citing Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 147 (2000)). The evidence must be of a sufficient “nature, extent, and quality” to
permit a jury to reasonably infer discrimination. Id. (citing Crawford, 234 F.3d at 903). If
Markiewicz cannot do so then Galloway will be entitled to summary judgment on the FMLA

retaliation claim.
Before examining the evidence cited in the record to determine whether there is a
conflict in substantial evidence sufficient to defeat summary judgment, the Court first
addresses a potentially determinative question of law that the parties dispute, i.e., whether
mixed-motive causation continues to apply in an FMLA retaliation case or whether the more
stringent “but for” standard applies.
In Richardson v. Medtronics International, Inc., 434 F.3d 327, 334 (5th Cir. 2005), the
Fifth Circuit endorsed the mixed-motive framework in “appropriate” FMLA retaliation cases.
Under the mixed-motive framework the plaintiff need not prove that discrimination was the
sole reason for the discharge. Id. Rather, it would be sufficient to show that the exercise of
FMLA rights was a motiving factor in the decision to terminate the employee. Id. at 335.
Galloway’s position is that Richardson is no longer good law in light of the Supreme

working through her lunch break and therefore not taking a lunch break at all. But Galloway’s
position is that Markiewicz was in fact taking lunch breaks but that she was not clocking out for
them—according to Galloway, Markiewicz had been observed away from her desk and eating in
the kitchen on days when she had not clocked out for lunch.

Page 10 of 36
Court’s decisions in Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009), and
University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338 (2013), that
eliminated the mixed-motive framework in ADEA and Title VII retaliation cases. Although
Richardson dealt specifically with an FMLA retaliation claim, and those Supreme Court
decisions did not, Galloway argues that Richardson’s reasoning has been destroyed, that the
case has been implicitly overruled, and that the Court should hold Markiewicz to the more
stringent “but for” causation standard.
Markiewicz’s position is that until it is overruled by the Fifth Circuit, Richardson

continues to be binding law in this circuit. Markiewicz also points out that most courts
continue to apply the mixed-motive approach in FMLA retaliation cases following the Gross
and Nassar decisions.
While Galloway’s legal arguments are persuasive, the Court is persuaded that they
are best left to the Fifth Circuit which thus far has expressly declined (more than once) to
address the impact of Gross and Nassar on Richardson’s mixed-motive holding
notwithstanding that those decisions are not recent. Undoubtedly, the Fifth Circuit has cast
doubt on the continued viability of Richardson, but it has also cautioned against “blindly
applying” Gross and Nassar to the FMLA, Stanton v. Jarvis Christian Coll., No. 20-40581,
2022 WL 738617, at *5 (5th Cir. Mar. 11, 2022) (unpublished) (citing Adams v. Mem’l
Herman, 973 F.3d 343, 353 (5th Cir. 2020)). Earlier this year in Stanton, the Fifth Circuit
explained why grafting the holdings of Gross and Nassar onto the FMLA is not as simple as
it may seem at first blush. See Stanton, 2022 WL 738617, at *6.
The Court is persuaded that it remains bound by Richardson and that the appropriate
standard of causation that applies to Markiewicz’s FMLA retaliation claim is the mixed-motive

Page 11 of 36
causation standard.9 Thus, the question is whether Markiewicz has demonstrated that there
is a “conflict in substantial evidence” on the issue of whether Galloway’s proffered reason for
the termination—even if true—is but one of the reasons for the termination, another of which
was discrimination; in other words, was Markiewicz’s use of FMLA leave (and her request for
more leave) a motivating factor in the decision to terminate her.10 Richardson, 434 F.3d at
333 (citing Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004)).
It is undisputed that the termination decision was made by Andrea Albert, one of the
law firm’s shareholders and Markiewicz’s direct supervisor. At Galloway, legal assistants like

Markiewicz are supervised by the attorneys for whom they work. (Rec. Doc. 40-4, 30(b)(6)
deposition at 190). Albert explained that she decided to terminate Markiewicz because of a
continuing problem with insubordination and failure to adhere to firm rules that Markiewicz
had previously been counseled on. (Id. at 142). Albert explained that Markiewicz would take
lunch and not clock out, and that this problem went all the way back to February of 2018.

9 If the Court rules against Galloway on the legal question of whether mixed-motive continues to
apply then Galloway contends that the Court should nonetheless apply the but for causation
standard because Markiewicz has never conceded that Galloway had any legitimate reasons to
discharge her. (Rec. Doc. 40-1, Memorandum in Support at 11). The Court notes the language
from Richardson, 434 F.3d at 333, that has been quoted in subsequent cases stating that the
mixed-motive framework applies where the employee concedes that discrimination was not the
sole reason for the discharge. See, e.g., Adams, 973 F.3d at 353 n.11. The Court does not
interpret this language as requiring a factual stipulation by the employee to the effect that her
former employer had grounds to terminate her. Rather, the Court is persuaded that an
“appropriate” case for the mixed-motive framework is one in which there is evidence that both
permissible and impermissible motives played a part in the challenged employment decision.
See Stanton, 2022 WL 738617, at *4 (citing Richardson, 434 F.3d at 332-33; Adams, 973 F.3d at
353-54).

10 If Markiewicz proves that discrimination was a motivating factor in the employment decision,
the burden again shifts to the employer, this time to prove that it would have taken the same
action despite the discriminatory animus. Richardson, 434 F.3d at 333 (citing Rachid, 376 F.3d at
312). If Markiewicz creates an issue of fact as to the mixed-motive question then summary
judgment must be denied, and the pretext question decided by the jury.

Page 12 of 36
(Id.). Albert explained that in her opinion an employee who was repeatedly instructed with
regard to a firm rule—in particular, taking lunch every day and not clocking out when doing
it—was insubordinate. (Id. at 144-145). Albert denied that Markiewicz had ever been asked
or required to work through lunch. (Id. at 144).
Again, according to Galloway the issue with Markiewicz not clocking out for lunch was
first noted in early 2018, and Markiewicz’s personnel file contains evidence that clearly
supports this contention. Albert explained that she observed in early 2018 that Markiewicz
had been arriving late for work on a regular basis but not staying past 5:00 p.m. (Id. at 171).

She began to question whether Markiewicz was actually working the required 40 hours per
week. This prompted Albert to ask Officer Manager Candace Herrington-Loup to review
Markiewicz’s time records. (Id. at 172). The review showed not only that Markiewicz had not
been working 8 hours per day but also that she had not been clocking out for lunch (for over
a year) even though Markiewicz was regularly observed in the kitchen eating lunch. (Id.).
A “Written Warning” dated March 7, 2018, and signed by both Albert and Markiewicz,
memorializes a discussion that Albert had with Markiewicz on that date regarding her
tardiness and failure to clock out for lunch. (Rec. Doc. 40-3 at 96, Exhibit A-3). The
document advises that any further violation of the policies discussed is grounds for
disciplinary action including immediate termination. (Id. at 97). According to both Albert and
Candace Herrington-Loup, the personnel/office manager who was present at the meeting,
Markiewicz had no explanation for the infractions. (Id. at 183; Rec. Doc. 40-8, Herrington-
Loup deposition at 65). On the same day an email was sent to all paralegals, legal
assistants, and file clerks reminding them about the firm’s policy regarding tardiness and
clocking out for lunch. (Rec. Doc. 40-8 at 17, Herrington email). Markiewicz began arriving

Page 13 of 36
on time and clocking out for lunch daily after the March 7, 2018 written reprimand.
Although the foregoing events did not directly lead to Markiewicz’s termination, they
do form the backdrop for what came later. According to Albert events that took place
relatively early in 2019 persuaded her that Markiewicz should be terminated. According to
Albert, on February 12, 2019, Markiewicz stormed into Albert’s office screaming and crying,
standing over her desk, pointing her finger, and refusing to leave Albert’s office when asked
to do so. (Rec. Doc. 40-4, 30(b)(6) deposition at 229-30). Markiewicz said inappropriate
things during what Albert characterized as a “verbal assault.” (Id. at 229). Albert did discern

that Markiewicz was upset about an issue with PTO or vacation and therefore called
Herrington-Loup into the office with her. (Id. at 236). Albert had to walk Markiewicz out in
order to remove her from her office; she sent her home for the rest of the day to cool off, and
scheduled a follow-up meeting for Friday of that week.11 (Id. at 230).
At the February 15, 2019 meeting, which was the Friday after the verbal assault and
the scheduled follow-up to that encounter, Albert (Tim Hassinger also attended the meeting)
explained that conduct like what Markiewicz had exhibited in her office earlier in the week
(including the use of inappropriate language and disparagement of co-workers
(characterized as gossiping)) would not be tolerated. (Id. at 249). Markiewicz was counseled
about PTO and lunch breaks once again. This meeting resulted in a final written warning to

11 On February 12, 2019, the day that Markiewicz was sent home for the verbal assault on
Albert, Markiewicz responded to an email from Herrington-Loup regarding the failure to account
for her time on January 28, 2019, when she was absent from work but had not put a leave
request into the system. (Rec. Doc. 40-3 at 127, Exhibit A-10). Markiewicz acknowledged that a
day of PTO was put into the system on her behalf and thanked the staff person who had done it
for her. (Id.).
Exhibit 37 to Herrington’s deposition is a memorialization of what took place on February
12, 2019. (Rec. Doc. 40-8 at 25, Exhibit D-D).

Page 14 of 36
Markiewicz regarding use of PTO, mandatory lunch breaks, language, and gossiping, with a
warning that any violation of the policies relating to those items could result in immediate
separation of employment. (Rec. Doc. 40-4 at 38, Exhibit 45). The final warning was signed
by both Albert and Markiewicz.
Although Markiewicz was not terminated until June 2, 2019, Albert testified that she
made the termination decision with respect to Markiewicz at the end of February 2019. (Id. at
262). Albert explained how she came to that decision—Albert learned while she was out of
town in February, which was the very next week following the final warning meeting, that

Markiewicz had again taken a lunch break without clocking out.12 Albert considered this to
be insubordinate conduct in light of the prior warnings regarding lunch breaks, and given
Markiewicz’s untenable behavior during the February 12th confrontation, Albert decided that
Markiewicz should be terminated. (Id. at 263). Albert asked Herrington-Loup to be on the
lookout for promising resumes so that Markiewicz could be replaced. (Id. at 263). A
candidate was interviewed on May 3, 2019, she was hired to replace Markiewicz on May 6,
2019, and her start date was scheduled for June 5, 2019. (Rec. Doc. 40-4 at 44, Exhibit B).
If Albert’s testimony as to when she made the termination decision is credited then
Markiewicz’s FMLA claim fails because it would mean that the termination decision was
made before Markiewicz requested or took any FMLA leave, and therefore FMLA leave (past
and future) could have played no role in the termination decision. Herrington-Loup did testify
that “at the time they made the decision to terminate April, they also said, ‘We’re not going to
do it prior to [her husband’s] surgery. We’re going to let her get through that.’” (Rec. Doc. 40-

12 In fact, the time and attendance report confirms that this occurred three times after the
February 15th final warning: February 19, 20, and 22. (Rec. Doc. 40-9 at 51, Exhibit E-3).

Page 15 of 36
8, Herrington deposition at 139). Herrington believed that it was Albert who had said that to
her. (Id.). Other than this lukewarm statement, the record contains no evidence to
corroborate Albert’s contention that she made the termination decision months before it was
actually executed. The Court agrees with Markiewicz’s contention that it would exceed the
Court’s permissible role on summary judgment to credit Albert’s decision-making timeline—
that determination falls within the province of the jury.
Given that Galloway has only Albert’s testimony to establish that the termination
decision predated the use of any FMLA leave or the request for more leave, testimony that

the jury could decline to credit, Markiewicz stresses the timeline of the events proximate to
her discharge, including the fact that she was discharged a mere three weeks after returning
to work from FMLA leave and shortly after requesting more FMLA leave. Markiewicz
contends that the timing is so suspicious as to render Albert’s explanation as incredible. And
even if the discharge decision was made in February 2019, Markiewicz contends that the
decision would have to have been made very shortly after she requested FMLA leave on
February 13, 2019, when Markiewicz requested FMLA leave for her husband’s surgery in
May. (Rec. Doc. 43-16, Exhibit 14). It was only two days later that the February 15, 2019
final warning meeting with Tim Hassinger took place. On May 1, 2019, Markiewicz’s husband
underwent cancer surgery. Markiewicz took FMLA leave on April 25 and 26 to attend a
medical appointment with him. Markiewicz took FMLA leave from April 30 through May 9 in
conjunction with the surgery and recovery. Markiewicz returned to work on May 10, 2019.
On May 30, 2019, Markiewicz put in a request for leave via calendar invites to have
carpal tunnel surgery for herself in June, and leave based on her husband’s condition in July.
(Rec. Doc. 43-22, Exhibit 20). She was discharged on June 2, 2019, which was three weeks

Page 16 of 36
after her return.
In a retaliatory discharge case, the plaintiff may rely on temporal proximity between
protected activity and an adverse employment action only if the two are “very close” in time.
Zamora v. City of Houston, 798 F.3d 326, 335 (5th Cir. 2015) (citing Clark Cty. Sch. Dist. v.
Breeden, 532 U.S. 268, 273-74 (2001)). Sufficiency of “closeness” is not governed by bright
line rules because a time span that suffices in a case with other circumstantial evidence of
retaliation may not suffice when the plaintiff has no other evidence of retaliation. See Feist,
730 F.3d at 454-55 (citing Evans v. Houston, 246 F.3d 344, 354 (5th Cir. 2001); Raggs v.

Miss. Power & Light Co., 278 F.3d 463, 472 (5th Cir. 2002)). Courts in this circuit weigh
temporal proximity as part of “the entire calculation” of whether the employee has shown a
causal connection between the protected activity and the adverse employment action.
Hague v. Univ. of Tex. Health Science Ctr., 560 Fed. Appx. 328, 334 n.7 (5th Cir. 2014)
(unpublished) (quoting Shirley v. Chrysler First, Inc., 970 F.2d 39, 44 (5th Cir. 1992)).
But temporal proximity standing alone is insufficient to establish an issue of fact as to
pretext after an employer has provided a non-retaliatory reason. Aryain v. Wal-Mart Stores
Texas LP, 534 F.3d 473, 487 (5th Cir. 2008) (citing Strong v. Univ. Healthcare Sys., LLC,
482 F.3d 802, 808 (5th Cir.2007)); see Badgerow v. REJ Props., Inc., 974 F.3d 610, 620 (5th
Cir. 2020). If an employee attempts to rely only on temporal proximity to show causation, the
timing must be “very close.” Perkins v. Child Care Assocs., 751 F. App'x 469, 474 (5th Cir.
2018) (citing Feist v. Louisiana, 730 F.3d 450, 454 (5th Cir. 2013)). An interval of weeks
between protected activity and termination is “certainly close timing.” Owens v. Circassia
Pharm., Inc., 33 F.4th 814, 835 (5th Cir. 2022).
The timing of Markiewicz’s termination in relation to her return to work following FMLA

Page 17 of 36
leave (3 weeks) and her request to take additional FMLA leave (3 days) is certainly very
close although maybe not so close as to survive summary judgment based on temporal
proximity alone. It certainly is not as close as the plaintiff in Badgerow v. REJ Properties,
Inc., supra, where the termination occurred “in the immediate aftermath” of the
decisionmaker being informed about the protected activity. Even in that case the Fifth Circuit
discussed the plaintiff’s other significant evidence of pretext that combined with her reliance
on such “very close” temporal proximity made summary judgment on her retaliation claim
inappropriate. Badgerow, 974 F.3d at 620.

In order to survive summary judgment, Markiewicz’s approach is to combine
“suspicious timing” or temporal proximity with what she contends constitutes other significant
evidence of pretext. See Owens, 33 F.4th at 835. Markiewicz advances several categories of
evidence that she contends demonstrate pretext, most of which are not helpful to her. For
example, Markiewicz’s arguments surrounding the leave that she took in 2018 do not help to
establish pretext for her termination because Markiewicz has not established that the leave
that she took in 2018 was FMLA eligible. As the Court has already pointed out, Markiewicz
could recall next to nothing about the days that she took off in 2018 much less that any given
day would have been eligible for FMLA status. Galloway identified a couple of days that
would have qualified—days for which Markiewicz was not denied leave—but Markiewicz’s
seems to assume that every day she sought leave following her husband’s cancer diagnosis
in 2017 implicated the FMLA.13 Thus, the Court sees no significance vis à vis the termination
to the fact that no one offered Markiewicz the opportunity to take FMLA leave in 2018.

13 Markiewicz does something similar by putting the medical records for her and her husband
into the record to establish FMLA leave eligibility in 2018. Again, whether some of the days in
2018 would have been FMLA eligible is not disputed.

Page 18 of 36
But even if Markiewicz could recall what she was doing in 2018 and establish FMLA
eligibility for the time that she was out, she fails to link this to any animus on Albert’s part,
which is essential because Albert is the shareholder who made the termination decision on
behalf of Galloway. Meanwhile, Markiewicz has pointed out that it was the HR director who
knew about her situation in 2018 and failed to suggest that FMLA leave might be
appropriate. As explained below, Albert was unhappy with all of the time that Markiewicz had
been out in 2018 but whether or not the time out could have qualified for FMLA leave status
is not probative of retaliation.

Next, Markiewicz goes too far in contending that she was “disciplined” near the end of
2018 when she was counseled about the possibility of losing eligibility for health insurance
benefits if she did not bring her hours up in the first quarter of 2019. To say that she was
disciplined is simply a mischaracterization. But again, this argument loses any weight given
that Markiewicz has not demonstrated that all of the leave that she took in 2018, which
included time off to take advantage of the free air fare passes for her and her husband to
travel extensively, was even FMLA eligible.
In sum, any issues surrounding the 2018 leave are non-issues insofar as FMLA
pretext and retaliation are concerned.
Another unconvincing argument that Markiewicz makes is that the evidence in this
case presents a situation of shifting explanations as to why she was terminated, and that this
is indicative of pretext. In particular, Markiewicz contends that while Albert tied the
termination decision to the failure to clock out when taking lunch breaks, in the explanation
that Galloway sent to the Louisiana Workforce Commission to oppose unemployment
benefits, several reasons were noted, and that pretext can be inferred on this basis.

Page 19 of 36
Evidence of “inconsistent explanations and the absence of clear criteria” in an employer’s
decision-making can be enough to survive summary judgment if, under the facts of a
particular case, that inconsistency and lack of criteria could lead to a reasonable inference of
pretext. Owens, 33 F.4th at 830-31 (citing Gosby v. Apache Indus. Servs., Inc., 30 F.4th 523,
528 (5th Cir. 2022)).
But in Markiewicz’s case the Court finds no merit to the contention that Galloway’s
additional supporting reasons for terminating her somehow undermine or call into question
the specific reasons that Albert offered for the decision that she made to terminate

Markiewicz. Even if one were to conclude that the proffered reason for the termination is
false, it is not ipso facto discriminatory—it may or may not be so. See Owens, 33 F.4th at
826. The evidence of falsity must be of a sufficient “nature, extent, and quality” to allow the
jury to make the inferential leap to discrimination a rational one. Id. at 826 n.7 (citing Reeves,
530 U.S. at 147). The Court sees no merit to the contention regarding shifting explanations
for the termination.
Next, in order to bolster her case Markiewicz points to other employees that she
believes would be comparators, i.e., employees who also failed to clock out for lunch but
were not terminated. To show disparate treatment, Markiewicz must produce evidence that
they constituted “similarly situated” employees. Owens, 33 F.4th at 827 (quoting Okoye v.
Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 515 (5th Cir. 2001)).
Markiewicz has not demonstrated that these (former) employees are appropriate
comparators, which is her burden—it is not Galloway’s burden to refute her unsupported
contention of comparator status. The other employees may share the same job title but the
most important and fatal distinguishing factor as to these employees is that none of them

Page 20 of 36
reported to Albert. Albert made the termination decision in this case and no one has
suggested that Galloway would have terminated Markiewicz absent Albert’s decision to do
so. In other words, maybe another shareholder would have tolerated Markiewicz’s conduct
just as apparently the conduct of the so-called comparators was tolerated. Of course,
Galloway correctly points out that Markiewicz’s infractions as to the lunch breaks were more
egregious than the other former employees who purport to be comparators.
Finally, Markiewicz points to comments made by Albert that may suggest animus.
Exhibit 37 to Herrington’s deposition is a memorialization of what took place on February 12,

2019, the day of the verbal assault. (Rec. Doc. 40-8 at 25, Exhibit D-D). That document
refers to a comment that Albert made at the time in which she said that she had gone 4
months without a legal assistant last year [2018] and “that it wasn’t happening again this
year. She reminded April that they talked about this at the end of last year and agreed it
wouldn’t happen again this year.” (Id.). Markiewicz contends that this comment suggests that
Albert terminated her because she was planning to take time off in 2019—in other words,
FMLA leave—and that if she had not already taken leave and then requested more leave
Albert would not have terminated her. Markiewicz also claims that Albert told her, albeit
incorrectly (Markiewicz characterizes it as a material misrepresentation), that if she took
FMLA leave she would lose her health insurance benefits.14
The Court does not find it particularly significant to engage in the academic exercise
of determining whether the remarks, which for purposes of summary judgment are accepted

14 It is unclear when Albert made this last statement to Markiewicz. The citations that Markiewicz
provided for the comment were for her own email in which she claimed that Albert made the
statement and the excerpt of the 30(b)(6) deposition where Albert acknowledged that the
statement is incorrect. (Citations to record in footnote 35 of Markiewicz’s Opposition). It is not
clear that Albert agrees that she made the statement.

Page 21 of 36
as having occurred, (Rec. Doc. 49, Reply at 6 n.17), are better classified as direct or
circumstantial evidence of pretext. The remarks are significant because they were made by
the individual who not only had authority to make the termination decision but who actually
made it in this case. And if Albert’s testimony is credited regarding when she actually made
the decision to terminate Markiewicz, then the remarks were made proximate in time to the
termination decision. The remarks clearly evince Albert’s displeasure with Markiewicz’s
significant leave in 2018 and her concern that it could happen again in 2019. As Galloway
points out, the comments are not necessarily probative of anything other than Albert’s

dissatisfaction with Markiewicz’s numerous vacations (non-FMLA) and tardiness, as
opposed to her FMLA protected absences. But the Court is persuaded that the significance
of the remarks insofar as the FMLA retaliation claim is concerned must be determined by the
jury. Given the very close timing between the termination and the protected FMLA activity in
this case, and in light of the leave-antagonistic comments made by the decision-maker, a
reasonable fact finder could infer that Galloway’s proffered reason for Markiewicz’s firing was
pretext for unlawful retaliation.
The Court is persuaded that Markiewicz has demonstrated that there is a “conflict in
substantial evidence” sufficient to avoid summary judgment on the issue of pretext.
Assuming that the jury infers discriminatory animus in this case, it will be Galloway’s burden
to prove that it would have taken the same action despite the discriminatory animus.15

15 Galloway has argued that intervening misconduct occurred to interrupt Markiewicz’s timeline
so as to negate the causation inference created by timing and temporal proximity, specifically the
verbal assault on February 12, 2019, and Markiewicz’s conduct (more lunch violations) in the
aftermath of the February 15, 2019 final warning meeting when Hassinger was present. (Rec.
Doc. 40-9 at 51, Exhibit E-3). The Court is persuaded that the fact-finder and not the Court
should determine whether intervening misconduct dispels the inference of causation in
Markiewicz’s timeline of events.

Page 22 of 36
For the foregoing reasons, Galloway’s motion for summary judgment is GRANTED as
to the FMLA interference claim and DENIED as to the FMLA retaliation claim.
B. ADA Claims
As outlined above, Markiewicz seeks relief under the ADA based on two legal
theories, one for failure to accommodate and one for disability-based harassment. The ADA
claims are related to several ailments that Markiewicz claims to have: hearing loss, migraine
headaches, carpel tunnel syndrome, and cervical disc issues.
For purposes of summary judgment only, the Court assumes that these ailments

qualify under the ADA as disabilities.16 A common element to both claims is that the plaintiff
be “disabled.” Gowesky v. Singing River Hosp. Sys., 321 F.3d 503, 508 (5th Cir. 2003).
1. Failure to Accommodate
The ADA (Americans with Disabilities Act) prohibits an employer from discriminating
against a “qualified individual with a disability on the basis of that disability.” EEOC v. LHC
Group, Inc., 773 F.3d 688, 694 (5th Cir. 2014) (quoting 42 U.S.C. § 12112(a)). The Act
defines “disability” as “a physical or mental impairment that substantially limits one or more
major life activities.” 42 U.S.C. § 12102(1)(A). The statute also allows for suits by plaintiffs
who though not actually disabled per the definition are “regarded as having such an
impairment.” Id. § 12102(1)(C).
Discrimination includes “not making reasonable accommodations to the known

16 Galloway points out for instance that Markiewicz’s hearing loss is not even medically
documented. The Court does not interpret Galloway’s failure to question disability status as part
of its summary judgment motion as a concession as to disability status. In fact, Galloway
expressly advised that it disputed many of the facts upon which the ADA claims were based but
accepted them as true for summary judgment purposes only. (Rec. Doc. 40-1, Memorandum in
Support at 16 n.90).

Page 23 of 36
physical or mental limitations of an otherwise qualified individual with a disability . . . unless
such covered entity can demonstrate that the accommodation would impose an undue
hardship on the operation of the business of such covered entity.” Amedee v. Shell Chem.,
L.P., 953 F.3d 831, 837 (5th Cir. 2020) (citing § 12112(b)(5)(A)). “Thus, a plaintiff must prove
the following statutory elements to prevail in a failure-to-accommodate claim: (1) the plaintiff
is a ‘qualified individual with a disability;’ (2) the disability and its consequential limitations
were ‘known’ by the covered employer; and (3) the employer failed to make ‘reasonable
accommodations’ for such known limitations.” Thompson v. Microsoft Corp., 2 F.4th 460, 467

(5th Cir. 2021) (citing Moss v. Harris Cty. Constable Precinct One, 851 F.3d 413, 417 (5th
Cir. 2017)).
An ADA failure to accommodate claim does not require proof of an adverse
employment action; a failure-to-accommodate claim provides a mechanism to combat
workplace discrimination even when the employee in question has not suffered an adverse
employment action. LHC Grp., Inc., 773 F.3d at 703 n.6.
Galloway’s sole pre-trial summary judgment challenge to the failure to accommodate
claims is that they are time-barred.
The ADA requires that a plaintiff exhaust her administrative remedies with the EEOC
before pursuing claims in federal court. Dao v. Auchan Hypermarket, 96 F.3d 787, 788 (5th
Cir. 1996) (noting the ADA’s incorporation of the exhaustion procedures applicable to Title
VII claims). An ADA claim that has not been properly exhausted will be dismissed. Id. In
Louisiana, in order to exhaust an ADA claim the plaintiff must file her charge of
discrimination within 300 days after the alleged act of discrimination has occurred.
Windhauser v. Board of Supv. for La. State Univ., 360 Fed. Appx. 562, 566 (5th Cir. 2010).

Page 24 of 36
Markiewicz filed her EEOC charge on November 19, 2019. Therefore, any alleged
acts of discrimination that occurred before January 26, 2019 (the parties do not dispute that
this is the operative date) are time-barred and must be dismissed. It is undisputed that as to
every ailment that Markiewicz bases her failure to accommodate claims on, the
accommodation that she requested was first made well-before January 26, 2019, and in
some cases many years before that date. Markiewicz did not receive the accommodations
that she requested. But she contends that she did not receive explicit denials of her
accommodation requests either.

In fact, according to Markiewicz the only outright or explicit “denial” that she ever
received as to her numerous accommodation requests was at the February 15, 2019
meeting, when Markiewicz attempted to show Tim Hassinger and Albert a doctor’s note from
2013 that references her migraines and cervical issues (diagnosed in 2011 or 2012).That
note states that Markiewicz should have dimmed lighting and an ergonometric workstation.
(Rec. Doc. 43-25, Exhibit 23). In response to this note, which had previously been sent to
Herrington-Loup on December 4, 2013, Hassinger told Markiewicz that Galloway was not
concerned about her migraines.
To be sure, a claim for failure to accommodate will accrue when a request for an
accommodation is first denied and therefore will start the running of the 300-day charge-filing
period. Subsequent denials of a re-urged request will not initiate a new 300-day charge-filing
period. Markiewicz correctly recognizes, however, that the trigger for the statute of limitations
is not necessarily an explicit denial but rather a discrete act by the employer which has a
“degree of permanence” sufficient to trigger an employee’s awareness of her injury in order
to assert her rights. (Rec. Doc. 43, Opposition at 19). Obviously, an unequivocal “no” or

Page 25 of 36
“denial” will suffice as such a discrete act.
Markiewicz points out, however, that until Hassinger’s negative comment on February
15, 2019, there were no discrete acts by Galloway sufficient to put her on notice that her
requests had been denied and thereby trigger the running of the 300-day period. According
to Markiewicz, Galloway’s approach was simply to ignore her requests or put her off by
telling her that someone would look into it but no one ever did. Thus, as to the
accommodations requested via the 2013 doctor’s note, Markiewicz contends that the 300-
day charge-filing period did not start to run until February 15, 2019, which by her reasoning

would render her failure to accommodate claim for dimmed lighting and an ergonometric
workstation (related to the claimed disabilities of migraines and cervical issues) timely. As to
her other requests (those not part of the 2013 doctor’s note), Markiewicz contends that they
are likewise not time-barred again due to the absence of any discrete acts by Galloway
(denials) during her employment to start the running of the 300-day window. Markiewicz also
contends that those requests relate to the requests raised in the 2013 doctor’s note, and that
the continuing violation doctrine should be applied in order to allow her to escape any
problems with timeliness.
It is undisputed that by presenting the 2013 doctor’s note to Hassinger and Albert,
Markiewicz was actually re-urging the same accommodations request that she had made to
Herrington-Loup in 2013. If the failure to accommodate claim associated with this re-urged
request was already time-barred on February 15, 2019, then Hassinger’s denial on that date
would not start a new 300-day window so as to revive the claim.
According to Markiewicz, it was around October 2013 when Herrington-Loup, the
office manager, became aware that Markiewicz had migraines and that they were triggered

Page 26 of 36
by factors such as lighting. Markiewicz was allowed to remove one light bulb from her
workstation (this about a month after the formal request in 2013) but was not allowed to
remove all of the bulbs. In fact, Markiewicz was firmly told that she could do no more than
remove one bulb. So as early as 2013, Markiewicz knew that Galloway was not going to
accommodate her any further as to lighting issues. (Rec. Doc. 167, Markiewicz Deposition at
167). In this same timeframe , Markiewicz had also asked for the accommodation of having a
private office because her cubicle workstation did not allow her to control the lighting as
necessary or to have an ergonometric workstation. This suggestion was rebuffed by

Herrington-Loup based on Markiewicz’s job position (non-attorney) but Markiewicz later
observed other non-attorney staff persons receive an office. Markiewicz testified that “[a]t
every opportunity, they refused me to have the accommodations that my doctor asked for.”
(Rec. Doc. 40-3, Markiewicz deposition at 172). Markiewicz knew after three years had
passed that Galloway was not going to grant her requests. (Id. at 153). Thus, for six years,
until she was ultimately terminated for non-disability-related reasons, the lighting
accommodation that Galloway had allowed for migraines was for Markiewicz to take out one
bulb in her workstation, which she found to be inadequate. Markiewicz’s request for a
standing desk was made in 2017 or 2018 and was met with a firm “no” response. (Id. at 192,
194).
The Court is persuaded that the failure to accommodate claims based on the lighting,
ergonometric workstation (including the standing desk), private office (re-urged several times
over the years), are all time-barred. It was well before January 26, 2019, that Markiewicz had
asked to do more than remove a single lightbulb from her workstation and had been told no.
As to the standing desk, she was explicitly denied this request. When Markiewicz watched

Page 27 of 36
other non-attorney staff receive offices it became evident that Galloway would not allow her
the accommodation of a private office, which in essence was a denial. The same holds true
for accommodations as to an ergonometric workstation. Markiewicz even relented and
bought her own ergonometric chair because she knew that Galloway was not going to grant
her requests.
Another accommodation for migraines that Markiewicz had requested was to have
the other employees cease spraying/wearing perfume in the office because she believed that
this aggravated her condition. This was a re-urged request that Markiewicz raised with

Herrington on February 15, 2019. Herrington-Loup responded that she had spoken to the
employees involved but that they had denied spraying anything. (Rec. Doc . 43-44, Exhibit
22). Several months earlier Markiewicz had asked Herrington-Loup to speak to some of the
offending employees about it but Herrington told Markiewicz to handle it herself. (Rec. Doc.
40-3, Markiewicz deposition at 172-73). Being told to handle it yourself would seem a rather
discrete act indicative of a denial.
Markiewicz’s reliance on the continuing violation doctrine is misplaced. The
continuing violation theory relieves a plaintiff of establishing that all of the complained-of
conduct occurred within the actionable period if the plaintiff can show a series of related acts,
one or more which falls within the limitations period. Windhauser, 360 Fed. Appx. at 566
(citing Messer v. Meno, 130 F.3d 130, 134 (5th Cir. 1997)). But discrete discriminatory acts
are not actionable if time barred, even when they are related to acts complained of in timely
filed charges. Henson v. Bell Helicopter Textron, Inc., 128 Fed. App’x 387, 391 (5th Cir.
2005) (citing Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002)).
The only act that occurred within the 300-day window was Hassinger’s comment at

Page 28 of 36
the February 15, 2019 meeting. But the continuing violation doctrine does not operate to
revive already time-barred claims which is precisely what Markiewicz is trying to do. The
continuing violation doctrine also does not operate to hold a cause of action open indefinitely
when an employee continues working after an accommodation has been denied and the
employee simply continues to feel the continuing effect of the denial.
Markiewicz had notice well before the February 15, 2019 meeting of the actions
(including omissions) that would have supported her failure to accommodate claim, whether
those actions involved simply ignoring her requests without engaging in the interactive

process, granting similar requested accommodations to other employees but not to her, or in
some instances just telling her no. Markiewicz’s claims are time-barred.
Galloway’s motion for summary judgment is GRANTED as to the ADA failure to
accommodate claims.
2. Harassment
Markiewicz’s ADA harassment claim is based solely on hearing loss and migraine
headaches. The claim does not involve carpel tunnel syndrome or cervical disc issues.
A cause of action for disability-based harassment is “modeled after the similar claim
under Title VII.” Flowers v. S. Reg'l Physician Servs. Inc., 247 F.3d 229, 235 (5th Cir. 2001)
(citing McConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 558, 563 (5th Cir.1998)). To
establish a hostile-work-environment claim under the ADA, the plaintiff must show that: (1)
she belongs to a protected group, (2) was subject to unwelcome harassment (3) based on
her disability, (4) which affected a term, condition, or privilege of employment, and (5) the
employer knew or should have known of the harassment and failed to take prompt, remedial
action. Thompson v. Microsoft Corp., 2 F.4th 460, 470–71 (5th Cir. 2021) (citing Flowers,

Page 29 of 36
247 F.3d at 235-36). The “harassment” upon which the claim is based must be sufficiently
pervasive or severe to alter the conditions of employment and create an abusive working
environment. Id. (citing Flowers, 247 F.3d at 236). In determining whether harassment is
sufficiently pervasive or severe, courts consider “the frequency of the discriminatory conduct;
its severity; whether it is physically threatening or humiliating, or a mere offensive utterance;
and whether it unreasonably interferes with an employee's work performance.” Thompson, 2
F.4th at 471 (quoting Patton v. Jacobs Eng’r Grp., Inc., 874 F.3d 437, 445 (5th Cir. 2017)).
Simple teasing, offhand comments, and isolated incidents (unless extremely serious) do not

suffice to alter the terms and conditions of employment. Id. In other words, the legal standard
for workplace harassment in this circuit is high. Gowesky, 321 F.3d at 509.
Regarding hearing loss as a claimed disability, Markiewicz contends that she was
harassed primarily by shareholder Doris Bobadilla. Markiewicz informed Bobadilla via email
in May 2010 that she was deaf in her left ear, had been since childhood, and that sometimes
it caused her to speak in a loud voice.17 (Rec. Doc. 43-26, Exhibit 24). Markiewicz complains
that sometime in 2017, when she was moved to an area near Bobadilla and Albert, they both
made comments questioning how the move was going to work out because Markiewicz was
so loud. (Rec. Doc. 43-3, Markiewicz deposition at 179). Bobadilla would at times pound on

17 Markiewicz sent the email to Bobadilla as an apology for her loud tone because Bobadilla had
been at Markiewicz’s desk earlier in the day while Markiewicz was on the phone. The email does
not indicate what Bobadilla said or did while at Markiewicz’s desk to indicate her concern with
Markiewicz’s voice volume but Bobadilla responded to the email as follows: “April: No need to
apologize; I just wanted to remind you to be mindful of your voice volume. Thanks.” (Rec.
Doc. 43-26, Exhibit 24) (emphasis added). The Court notes that while this email establishes that
Bobadilla learned about Markiewicz’s hearing issue in 2010, it also establishes that Bobadilla’s
concerns with Markiewicz’s voice volume predated any knowledge about Markiewicz’s hearing
loss. (Id.) (Markiewicz: “I was not sure if you were aware that I am deaf in my left ear . . . .”).

Page 30 of 36
Markiewicz’s wall or her counter and make shh’ing gestures to her.
On April 13, 2018, Bobadilla sent an email to Markiewicz stating “Little loud.” (Rec.
Doc. 43-27, Exhibit 25). On April 24, 2018, Bobadilla sent an email to Markiewicz stating
“Please lower your voice -- I can hear you in my office.” (Id.). On November 1, 2018,
Bobadilla sent an email to Markiewicz stating that “FYI I can hear you in my office.”18 (Id.).
Regarding migraine headaches as a claimed disability, Markiewicz contends that she
was harassed by Bobadilla and Tim Hassinger. As noted earlier, Markiewicz had been
allowed to remove one light bulb from her workstation as an accommodation for migraines

but this caused the lighting to flicker. The harassment Markiewicz complains about is that
Hassinger would flicker her lights and Bobadilla would walk past her and comment “how do
the people sitting next to you see?” (Rec. Doc. 40-43, Markiewicz deposition at 191).
Bobadilla would also makes comments about how dark it was looking over by Markiewicz’s
area. Bobadilla once made a comment that Markiewicz was always absent because of her
migraines. (Rec. Doc. 40-43, Markiewicz deposition at 188). These comments were made a
handful of times. (Id. at 191).
Galloway’s challenge to the ADA workplace harassment claim focuses on two
elements. First, Galloway contends that Markiewicz cannot show that any of the comments
or conduct are based on disability or in any manner connected to her conditions. Second,

18 Galloway included with its exhibits an email from November 2012 in which Herrington-Loup
asked Markiewicz to be more mindful of her language because while some clients were in the
office she could hear Markiewicz say “f—ing c—nt” through the office wall and was pretty sure
that the clients had heard it also. (Rec. Doc. 40-8, Exhibit D-3). Markiewicz’s reply was that
because of her bad ear she could not tell how loud she was. Markiewicz does not cite this email
as an example of harassing conduct nor could she plausibly do so. A disability is no excuse for
such deplorable, vulgar language in an office environment. What this email demonstrates is that
Markiewicz was loud and that Galloway had legitimate non-disability-related concerns when
reminding her about it.

Page 31 of 36
Galloway argues that even if the conduct was based on disability, it is neither severe nor
pervasive enough to rise to the level of actionable workplace harassment.
The Court agrees that the “harassment” that Markiewicz has identified is neither
severe nor pervasive enough to rise to the “high” level of actionable workplace harassment
in this circuit. The comments and conduct were neither threatening nor humiliating and
occurred only a few times throughout the decade that Markiewicz worked for Galloway.
In support of her contention that the harassment was severe and pervasive enough to
have altered the conditions of employment and created an abusive working environment,

Markiewicz points out that Bobadilla reprimanded her on June 1, 2018, for errors in her work
and advised her to “concentrate on the task at hand with more focus.” (Rec. Doc. 43-27,
Exhibit 25). This admonition was received via an email that was sent by Bobadilla during the
same timeframe in 2018 when Bobadilla had been emailing Markiewicz about her voice
volume.
In Markiewicz’s reply email to Bobadilla, she attributed the errors to running late on
that particular day to a doctor’s appointment, and being extremely busy that particular week.
(Id.). Certainly, nothing suggests that the noted performance problems had anything to do
with the two “loud” emails that Bobadilla had sent back in April—and the November “loud”
email came after Bobadilla’s email about the errors. But even beyond that, an employee's
“subjective physical and emotional reactions” to her employer's conduct, “do not establish
that the work environment would have been perceived as hostile or abusive by a reasonable
employee.” Credeur v. Louisiana Through Off. of Att'y Gen., 860 F.3d 785, 797 (5th Cir.
2017) (citing Kumar v. Shineski, 495 Fed. Appx. 541, 543 (5th Cir. 2012)).
Galloway’s motion for summary judgment is GRANTED as to the ADA workplace

Page 32 of 36
harassment claim.
C. Gender-based Harassment
Markiewicz’s gender harassment claim is based on her belief that Bobadilla, who is a
female, had issues with her, and that the reason for those issues was because Markiewicz
was a woman. (Rec. Doc. 40-3, Markiewicz deposition at 113). Markiewicz believed that the
issues were due to her gender because of comments that Bobadilla would make from time to
time. (Id. at 114). According to Markiewicz, “[m]any times [Bobadilla] would be like, ‘Why
can’t you be like the other ladies? They mind their own business. They do this, they do that.

Can’t you be like the other ladies?” (Id. at 115). In other words, Bobadilla believed that
Markiewicz, as a female, should appropriately be “[q]uiet, complacent, fall in line, stop
complaining about her associates when they’d be wrong.” (Id.). Markiewicz’s Title VII
workplace harassment claim is based on same-sex gender stereotyping.
Where a Title VII harassment claim arises out of a supervisor's conduct, there are
four elements of a hostile working environment claim: (1) that the employee belongs to a
protected class; (2) that the employee was subject to unwelcome sexual harassment; (3) that
the harassment was based on a protected characteristic; and (4) that the harassment
affected a ‘term, condition, or privilege’ of employment. E.E.O.C. v. Boh Bros. Const. Co.,
731 F.3d 444, 453 (5th Cir. 2013) (citing Lauderdale v. Tex. Dep't of Criminal Justice, 512
F.3d 157, 162–63 (5th Cir. 2007)). To affect a term, condition, or privilege of employment,
the harassing conduct “must be sufficiently severe or pervasive to alter the conditions of [the
victim's] employment and create an abusive working environment.” Id. (quoting Aryain v.
Wal–Mart Stores of Tex., L.P., 534 F.3d 473, 479 (5th Cir. 2008) (alteration in original)).
Courts use an objective “reasonable person” standard to evaluate severity and

Page 33 of 36
pervasiveness. Boh Bros., 731 F.3d at 453 (citing Oncale v. Sundowner Offshore Servs.,
Inc., 523 U.S. 75, 82 (1998)). Ultimately, whether an environment is hostile or abusive
depends on the totality of circumstances. Id. (citing Harris v. Forklift Sys., Inc., 510 U.S. 17,
23 (1993)).
A plaintiff may rely on gender-stereotyping evidence to show that discrimination
occurred “because of . . . sex” in accordance with Title VII. Id. (citing Price Waterhouse v.
Hopkins, 490 U.S. 228 (1989)). A plaintiff can satisfy Title VII's because-of-sex requirement
with evidence of a plaintiff's perceived failure to conform to traditional gender stereotypes. Id.

(citing Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1085 (5th Cir. 1994)).
Assuming arguendo that Bobadilla’s comment was indicative of gender
stereotyping,19 this comment in insufficient as a matter of law to establish the level of severe
or pervasive harassment necessary to support an actionable Title VII claim.
In support of her claim Markiewicz points to her time working with attorney John
Getty, who left the firm in July 2018. She contends that Galloway’s decision to assign her to
him—apparently he was difficult to work for, used gender-based slurs, and suggested that he
might get angry enough to punch Markiewicz in the face—demonstrates that the firm viewed
her as nonconforming to the “demure” stereotype of a woman.
Mr. Getty’s reprehensible conduct does not establish that any of Bobadilla “issues”
with Markiewicz were because she was a woman or that Bobadilla subjected her to the level

19 When Bobadilla’s statement about the other “ladies” is considered in context it loses what at
first blush appears to be gender specific stereotyping. While Galloway has male and female
attorneys, all of the support staff are females. Markiewicz understood that the reference to the
other ladies meant the staff. (Rec. Doc. 40-3, Markiewicz deposition at 39). So it would seem
most likely that what Bobadilla was telling Markiewicz was to behave more like the other staff
members, not like stereotypical “ladies” in general.

Page 34 of 36
of harassment required to support an actionable Title VII claim.20
Galloway’s motion for summary judgment is GRANTED as to the Title VII gender
workplace harassment claim.
III. DISCUSSION—MOTION IN LIMINE
Galloway has filed a motion in limine seeking to exclude the following evidence: 1)
any evidence of alleged harassment by former attorney John Getty; 2) any evidence of
Markiewicz’s requests for accommodations under the ADA and Galloway’s responses
thereto; 3) any evidence of PTSD; and 4) any evidence of wage damages incurred by

Markiewicz following her decision to take herself out of the workplace as of March 2020.
The only claim that survives following Galloway’s motion for summary judgment is
Markiewicz’s FMLA retaliation claim.
The motion is GRANTED as to any evidence of alleged harassment by former
attorney John Getty. That evidence is irrelevant to the FMLA retaliation claim.
The motion is GRANTED as to any evidence of Markiewicz’s requests for
accommodations under the ADA and Galloway’s responses thereto. That evidence is
irrelevant to the FMLA retaliation claim.
The motion is MOOT as to any evidence of PTSD. Markiewicz has not been
diagnosed with PTSD and does not intend to suggest to the jury that she has been
diagnosed with it.
The motion is DENIED as to any evidence of wage damages incurred by Markiewicz
after March 2020. It will be for the jury to determine (assuming that Markiewicz prevails on

20 To be clear, Markiewicz is not bringing a claim based on Getty’s conduct but cites it for
background purposes only.

Page 35 of 36
the merits of her FMLA retaliation claim) whether or not Markiewicz’s actions in March 2020
demonstrate a failure to mitigate that ended her right to seek recovery after that point in time.
IV. CONCLUSION
Galloway’s motion for summary judgment is GRANTED IN PART AND DENIED IN
PART. The motion is DENIED as to the FMLA retaliation claim, which will be scheduled for
trial. The motion is GRANTED as to the FMLA interference claim, the ADA failure to
accommodate claim, the ADA harassment claim, and the Title VII gender harassment claim.
Galloway’s motion in limine is GRANTED IN PART AND DENIED IN PART as
explained above.
Accordingly, and for the foregoing reasons;
IT IS ORDERED that the Motion for Summary Judgment (Rec. Doc. 40) and the
Motion in Limine (Rec. Doc. 42), both filed by the defendant, Galloway, Johnson,
Tompkins, Burr, and Smith, APLC are GRANTED IN PART AND DENIED IN PART as
explained above.
IT IS FURTHER ORDERED that a status conference with the Court is set for
Thursday, October 27, 2022, at 11:15 a.m. in chambers.
October 18, 2022
+ C A mn
JAY, C. ZA
fuss Perey T JUDGE

Page 36 of 36

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10188447. Public record. Not legal advice.