The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CATHRYN E. LEGGIO, CIVIL ACTION
Plaintiff
VERSUS NO. 22-1232
OCHSNER CLINIC FOUNDATION, SECTION: “E” (5)
Defendant
ORDER AND REASONS
Before the Court is a Motion for Summary Judgment filed by Ochsner Clinic
Foundation (“Defendant” or “Ochsner”).1 The motion is opposed.2 For the reasons that
follow, the Motion for Summary Judgment is GRANTED IN PART and DENIED IN
PART.
PROCEDURAL BACKGROUND
This case stems from an employment relationship between Plaintiff and Ochsner
that was terminated in October 2020.3 In December 2019, Plaintiff was diagnosed with
breast cancer, underwent treatment, and, in the process, was required to take leave from
work.4 Ochsner contends it terminated Plaintiff’s employment because she sent
photographs of her breasts to a subordinate,5 who was also her medical power of attorney,
friend, and personal nurse.6 Plaintiff contends in reality Ochsner terminated Plaintiff’s
employment on account of her breast cancer and need to miss work or work remotely to
seek medical treatment.7 On May 4, 2022, Plaintiff initiated this lawsuit, bringing claims
pursuant to the Americans with Disability Act (“ADA”) and the Family Medical Leave Act
1 R. Doc. 22.
2 R. Doc. 31.
3 R. Doc. 1.
4 Id. at p. 3, ¶ 9.
5 Id. at p. 6, ¶ 21.
6 Id. at p. 3, ¶ 10.
7 See generally R. Doc. 1.
(“FMLA”).8 On February 27, 2023, Ochsner filed the instant Motion for Summary
Judgment,9 which Plaintiff opposes,10 and which was submitted for this Court’s
consideration on March 27, 2023.11
FACTUAL BACKGROUND
I. Undisputed Facts
The following facts are not in dispute. On October 24, 2016, Ochsner hired Plaintiff
as a clinical research coordinator.12 In late November 2016, Plaintiff took six weeks of
medical leave after the birth of her child, having no issue taking leave.13 Two years later,
in November 2018, Ochsner promoted Plaintiff to supervisor of clinical trials.14 Ochsner
uses a third party administrator, Sun Life, to manage employee requests for leave under
the FMLA by collecting information on the circumstances surrounding an employee’s
request and notifying employees whether their request has been approved.15 In March of
2019, Plaintiff requested and took 12 weeks of FMLA leave after the birth of her second
child.16 No one made any negative comments, treated Plaintiff negatively, or gave Plaintiff
any problems for taking FMLA leave related to the birth of her child.17 Further, while
employed by Ochsner, to Plaintiff’s knowledge, no supervisor or manager made any
negative comments about Plaintiff’s use of any FMLA leave.18
In her role as supervisor of clinical trials, two employees reported directly to
Plaintiff during the relevant time period: clinical research nurse April Wendt and clinical
8 Id.
9 R. Doc. 22.
10 R. Docs. 31 and 40.
11 R. Doc. 44 (Ochsner’s second reply); see also R. Doc. 37 (Ochsner’s first reply).
12 R. Doc. 22-1 at p. 1, ¶ 1; R. Doc. 40 at p. 1, ¶ 1.
13 R. Doc. 22-1 at p. 1, ¶ 2; R. Doc. 40 at p. 1, ¶ 2.
14 R. Doc. 22-1 at p. 1, ¶ 3; R. Doc. 40 at p. 1, ¶ 3.
15 R. Doc. 22-1 at p. 1, ¶ 4; R. Doc. 40 at p. 1, ¶ 4.
16 R. Doc. 22-1 at p. 2, ¶ 5; R. Doc. 40 at p. 1, ¶ 5.
17 R. Doc. 22-1 at p. 2, ¶ 6; R. Doc. 40 at p. 1, ¶ 6.
18 R. Doc. 22-1 at p. 5, ¶ 29; R. Doc. 40 at p. 5, ¶ 29.
research coordinator Noor Deepika Makan.19 Before the COVID pandemic, clinical
research employees at Ochsner Kenner, including Plaintiff, Ms. Wendt, and Ms. Makan,
were required to work in the office absent unusual circumstances.20
In December 2019, Plaintiff was diagnosed with breast cancer and began to
undergo treatment.21 That same month, Dr. Mark Roberts became dean of research for
Ochsner.22 As dean of research, Dr. Roberts oversees all clinical research and all other
research activities across Ochsner’s health systems.23 After Plaintiff’s December 2019
diagnosis, Plaintiff requested and received an accommodation under the ADA for
intermittent leave to attend appointments and receive treatments.24 Ochsner granted
Plaintiff an accommodation of protected unpaid leave for her appointments and
treatments without being required to use her paid time off.25 Plaintiff could take ADA
protected leave for up to four hours or for an entire day, as needed.26 Plaintiff’s
accommodation for intermittent leave under the ADA was initially granted for an entire
year (through December 2020), but it could be extended if needed.27
From July 1, 2020 to August 17, 2020, Plaintiff took FMLA leave when she had
double mastectomy surgery.28 Plaintiff requested the FMLA leave though Sun Life, which
informed Plaintiff that she had been approved for eight weeks of FMLA leave.29 Plaintiff
returned to work on August 17, 2020, after taking only six of the approved eight weeks of
19 R. Doc. 22-1 at p. 2, ¶ 7; R. Doc. 40 at p. 1, ¶ 7.
20 R. Doc. 22-1 at p. 2, ¶ 8; R. Doc. 40 at p. 1, ¶ 8.
21 R. Doc. 22-1 at p. 2, ¶ 9; R. Doc. 40 at p. 1, ¶ 9.
22 R. Doc. 22-1 at p. 2, ¶ 10; R. Doc. 40 at p. 1, ¶ 10.
23 R. Doc. 22-1 at p. 2, ¶ 11; R. Doc. 40 at pp. 1-2, ¶ 11 (admitting in substance).
24 R. Doc. 22-1 at p. 3, ¶ 12; R. Doc. 40 at p. 2, ¶ 12.
25 R. Doc. 22-1 at p. 3, ¶ 13; R. Doc. 40 at p. 2, ¶ 13 (to the extent denying, citing irrelevant deposition
testimony of Ansley Hammons).
26 R. Doc. 22-1 at p. 3, ¶ 14; R. Doc. 40 at p. 2, ¶ 14.
27 R. Doc. 22-1 at p. 3, ¶ 16; R. Doc. 40 at p. 2, ¶ 16.
28 R. Doc. 22-1 at p. 3, ¶ 17; R. Doc. 40 at p. 3, ¶ 17.
29 R. Doc. 22-1 at p. 3, ¶ 18; R. Doc. 40 at p. 3, ¶ 18.
FMLA leave.30 Plaintiff attributes her early return to a phone call she received from
Ochsner’s Samantha Bright in which Plaintiff was asked to return to work early.31 Plaintiff
did not inform anyone at Ochsner of this alleged call.32 During Plaintiff’s six-week FMLA
leave, her then-supervisor and then-director left Ochsner; when Plaintiff returned to
work, she reported directly to Dr. Mark Roberts, dean of research.33 Shortly thereafter,
Dr. Roberts informed Plaintiff that she would additionally report to Ms. Ansley
Hammons, who was manager of clinical research.34
A month after returning from six weeks of FMLA leave, on or around September
24, 2020, Plaintiff received a written copy of a coaching plan drafted after a meeting
between Plaintiff, Ms. Hammons, Ms. Bright, and human resources consultant Lara
Leone.35 The coaching plan was recommended by Ms. Hammons due, at least in part, to
complaints made by Plaintiff’s subordinate Deepika Makan.36 Specifically, Ms. Makan
complained about Plaintiff showing favoritism to Ms. Wendt, about Plaintiff treating Ms.
Makan “as a second class citizen,” and about Plaintiff not sufficiently supporting Ms.
Makan and retaliating against her.37 Ms. Hammons felt Ochsner had not properly trained
Plaintiff to be a supervisor.38 Accordingly, in connection with the coaching plan, Plaintiff
was counseled on professionalism and emotional intelligence, leadership, and
communication.39 Ms. Hammons began meeting with Plaintiff biweekly to provide her
with supervisory coaching to help her be more successful as a leader.40 Plaintiff had
30 R. Doc. 22-1 at p. 3, ¶ 19; R. Doc. 40 at p. 3, ¶ 19.
31 R. Doc. 22-1 at p. 4, ¶ 20; R. Doc. 40 at p. 3, ¶ 20.
32 R. Doc. 22-1 at p. 4, ¶ 20; R. Doc. 40 at p. 3, ¶ 20.
33 R. Doc. 22-1 at p. 5, ¶ 31; R. Doc. 40 at p. 5, ¶ 31.
34 R. Doc. 22-1 at p. 5, ¶ 32; R. Doc. 40 at p. 5, ¶ 32.
35 R. Doc. 22-1 at p. 6, ¶ 33; R. Doc. 40 at p. 5, ¶ 33.
36 R. Doc. 22-1 at p. 6, ¶¶ 33, 34; R. Doc. 40 at p. 5, ¶¶ 33, 34.
37 R. Doc. 22-1 at p. 6, ¶ 36; R. Doc. 40 at p. 5, ¶ 36.
38 R. Doc. 22-1 at p. 6, ¶ 34; R. Doc. 40 at p. 5, ¶ 34.
39 R. Doc. 22-1 at p. 6, ¶ 35; R. Doc. 40 at p. 5, ¶ 35.
40 R. Doc. 22-1 at p. 6, ¶ 37; R. Doc. 40 at p. 5, ¶ 37.
follow-up meetings with Ms. Hammons about the coaching plan weekly or every other
week, and Dr. Roberts occasionally joined those meetings.41
In October 2020, Plaintiff sought additional accommodation under the ADA,
which was communicated by Sun Life to Dr. Roberts as a request to work from home for
two months.42 Dr. Roberts explained to Sun Life that Ochsner could not accommodate
two months of fully remote work, given staffing shortages, the demands of Plaintiff’s
position, and the research studies taking place in the Ochsner Kenner research
department, among other reasons.43 On October 21, 2020, Dr. Roberts informed Plaintiff
via email that Ochsner could not accommodate two months of fully remote work, and Dr.
Roberts asked Plaintiff to schedule some time to discuss alternative accommodations.44
In response, Plaintiff clarified in an email that she was not seeking two months of working
fully remote, but rather, was seeking an accommodation to work remotely as needed due
to treatments or complications.45 Dr. Roberts responded to Plaintiff’s email re-urging his
request for a meeting.46
On October 26, 2020, Dr. Roberts and Ms. Hammons met with Plaintiff to discuss,
among other items, her accommodation request.47 Dr. Roberts and Ms. Hammons
communicated to Plaintiff, in an email sent by Ms. Hammons, that Ochsner “will
accommodate to the degree possible her need to work remotely. If work demands exceed
[Plaintiff’s] ability to be present, or she is not able to perform her duties [Ochsner] will
work with Sun Life to address the situation.”48 Plaintiff acknowledges Ms. Hammons
41 R. Doc. 22-1 at p. 6, ¶ 39; R. Doc. 40 at p. 6, ¶ 39.
42 R. Doc. 22-1 at p. 7, ¶ 41; R. Doc. 40 at p. 6, ¶ 41.
43 R. Doc. 22-1 at p. 7, ¶ 42; R. Doc. 40 at p. 6, ¶ 42.
44 R. Doc. 22-1 at p. 7, ¶ 44; R. Doc. 40 at p. 6, ¶ 44.
45 R. Doc. 22-1 at p. 7, ¶ 45; R. Doc. 40 at p. 6, ¶ 45.
46 R. Doc. 22-1 at p. 7, ¶ 46; R. Doc. 40 at p. 6, ¶ 46.
47 R. Doc. 22-1 at p. 8, ¶ 48; R. Doc. 40 at p. 6, ¶ 48.
48 R. Doc. 22-1 at p. 8, ¶ 49; R. Doc. 40 at p. 6, ¶ 49.
email accurately reflected what was discussed during the October 26, 2020 meeting.49
Regarding necessary time off for medical treatments, Plaintiff and Dr. Roberts reached
an agreement that Ochsner would continue to accommodate her and only requested that
Plaintiff share with Ochsner any planned absences.50
Also in October 2020, Plaintiff became aware that Ms. Wendt had complained to
human resources that Plaintiff sent Ms. Wendt a series of text messages and pictures that
Ms. Wendt thought were inappropriate.51 Specifically, on August 10, 2020, after Ms.
Wendt had not responded to Plaintiff’s non-work-related text messages for six days,
Plaintiff texted Ms. Wendt “Since you don’t care about me anymore I’ll just spam you with
shit.”52 Plaintiff then texted Ms. Wendt six pictures of Plaintiff exposed from the waist up
and posing in different positions.53 Plaintiff followed the pictures with “Fat AF but loving
my new small boobs! I’ll be back Monday. So better start talking to me again.”54
On October 20 and 22, 2020, Ms. Wendt reached out to Ms. Leone, an Ochsner
human resources representative, via Facebook message about what would happen “if a
member of leadership texted you inappropriate pictures that made you feel
uncomfortable.”55 After Ms. Wendt reached out to Ms. Leone via Facebook, Ms. Leone
and Ms. Wendt spoke by phone on October 26, 2020, and Ms. Wendt described the
pictures and reported they made her feel uncomfortable.56 Ms. Leone learned that
Plaintiff claimed she and Ms. Wendt had a personal friendship, but that was not an
important part of her investigation, as Ms. Wendt complained to Ms. Leone of sexual
49 R. Doc. 22-1 at p. 8, ¶ 50; R. Doc. 40 at p. 6, ¶ 50.
50 R. Doc. 22-1 at p. 8, ¶ 51; R. Doc. 40 at p. 6, ¶ 51.
51 R. Doc. 22-1 at p. 8, ¶ 52; R. Doc. 40 at p. 6, ¶ 52.
52 R. Doc. 22-1 at p. 9, ¶ 53; R. Doc. 40 at p. 6, ¶ 53.
53 R. Doc. 22-1 at p. 9, ¶ 54; R. Doc. 40 at p. 7, ¶ 54.
54 R. Doc. 22-1 at p. 9, ¶ 55; R. Doc. 40 at p. 7, ¶ 55.
55 R. Doc. 22-1 at p. 10, ¶ 59; R. Doc. 40 at p. 8, ¶ 59.
56 R. Doc. 22-1 at p. 10, ¶ 60; R. Doc. 40 at p. 8, ¶ 60.
harassment by a supervisor.57 Ms. Leone considered Ms. Wendt’s delay in reporting the
text messages and asked Ms. Wendt to explain the delay in reporting.58 Ms. Wendt
reported the delay was due to fear of retaliation.59 After conducting her initial
investigation, Ms. Leone informed Dr. Roberts that Ms. Wendt reported being highly
uncomfortable, had been harassed, and was in an unsafe work environment.60
Plaintiff was terminated on October 30, 2020.61 Dr. Roberts made the ultimate
decision to terminate Plaintiff’s employment, after consulting with Ms. Leone.62 Dr.
Roberts and Ms. Leone met with Plaintiff on October 30, 2020, four days after Ms. Leone
first reviewed the text messages, to confirm whether the messages were sent intentionally
and ultimately to inform Plaintiff that her employment was being terminated.63 Plaintiff
acknowledged the stated reason for termination was Plaintiff’s failure to adhere with
Ochsner’s Anti-Harassment policy.64 Ochsner’s Anti-Harassment Policy is “intended to
communicate that inappropriate behavior that demonstrates Harassment . . . against
others in any form is unacceptable and will not be tolerated.”65 The policy defines
“Harassment” as, among other actions, “[o]ffensive physical actions, written or spoken,
and graphic communication.”66 Plaintiff acknowledged that Ochsner should not ignore its
policies simply because of Plaintiff’s friendship with Ms. Wendt.67 Dr. Roberts testified
that any information regarding Plaintiff’s relationship with Ms. Wendt was not relevant
57 R. Doc. 22-1 at p. 10, ¶ 61; R. Doc. 40 at p. 8, ¶ 61 (admitting in substance).
58 R. Doc. 22-1 at p. 10, ¶ 62; R. Doc. 40 at p. 8, ¶ 62.
59 R. Doc. 22-1 at p. 10, ¶ 63; R. Doc. 40 at p. 8, ¶ 63.
60 R. Doc. 22-1 at p. 10, ¶ 64; R. Doc. 40 at p. 8, ¶ 64 (admitting in substance that Ms. Leone informed Dr.
Roberts of these things and that Ms. Wendt reported the same).
61 R. Doc. 22-1 at p. 10, ¶ 65; R. Doc. 40 at p. 8, ¶ 65.
62 R. Doc. 22-1 at p. 11, ¶ 66; R. Doc. 40 at p. 8, ¶ 66.
63 R. Doc. 22-1 at p. 11, ¶ 67; R. Doc. 40 at p. 8, ¶ 67.
64 R. Doc. 22-1 at p. 11, ¶ 66; R. Doc. 40 at p. 8, ¶ 66; see also R. Doc. 22-1 at p. 12, ¶ 74; R. Doc. 40 at p. 9,
¶ 74 (admitting in substance).
65 R. Doc. 22-1 at p. 11, ¶ 69; R. Doc. 40 at p. 9, ¶ 69 (admitting in substance).
66 R. Doc. 22-1 at p. 11, ¶ 70; R. Doc. 40 at p. 9, ¶ 70.
67 R. Doc. 22-1 at p. 12, ¶ 72; R. Doc. 40 at p. 9, ¶ 72.
to Ms. Wendt’s complaint.68 Plaintiff could not identify any other Ochsner employee who
violated Ochsner’s Anti-Harassment Policy who was not terminated.69
II. Disputed Facts
Plaintiff argues Defendant’s motion for partial summary judgment should be
denied because disputed issues of material fact exist. First, the parties dispute whether
Ochsner interfered with or gave Plaintiff “trouble” with her accommodation of ADA-
protected leave. Ochsner contends it is undisputed that “[n]o one ever interfered with or
gave Plaintiff trouble with her using her accommodation of ADA-protected leave” and
“[b]oth before and after her FMLA leave for her double mastectomy procedure, Plaintiff
utilized an accommodation of ADA-protected intermittent leave as needed and without
interference to attend appointments and receive treatment for breast cancer.”70 In terms
of evidence, Ochsner relies on Plaintiff’s deposition testimony.71 By contrast, Plaintiff
argues she was retaliated against for initially taking leave because of her disability and
need for treatment and ultimately terminated because of her cancer—in fact, Plaintiff
contends she was told to come back early from her medical leave because of Ochsner’s
efforts to participate in COVID vaccine clinical trials.72 In terms of evidence, Plaintiff
relies on her deposition testimony and her human resources complaint file.73
Second, the parties dispute when Samantha Bright called Plaintiff to ask her to
return to work early. Relying on Plaintiff’s deposition testimony,74 Ochsner contends it is
undisputed that Ms. Bright called Plaintiff, if she did at all, roughly a week before Plaintiff
68 R. Doc. 22-1 at p. 12, ¶ 73; R. Doc. 40 at p. 9, ¶ 73 (admitting in substance).
69 R. Doc. 22-1 at p. 12, ¶ 75; R. Doc. 40 at p. 9, ¶ 75 (admitting in substance).
70 R. Doc. 22-1 at p. 3, ¶ 15 and p. 5, ¶ 30.
71 R. Doc. 22-3 at pp. 69-70.
72 R. Doc. 40 at p. 2, ¶ 15 and p. 5, ¶ 30.
73 R. Doc. 22-3 at pp. 55-56; see also R. Doc. 31-2.
74 R. Doc. 22-3 at p. 55.
returned to work.75 By contrast, also relying on Plaintiff’s deposition testimony, Plaintiff
argues Ochsner misstates the evidence on which it relies because Plaintiff testified “I –
maybe I came back, like, a week later. I told her, let me see what my doctor says if you
guys really need me. I felt pressured from her to come back early; let me see what my
doctors say, and I’ll let you know.”76 Plaintiff contends this evidence only establishes
Plaintiff did not recollect the exact date of Ms. Bright’s phone call.77
Third, the parties dispute why Plaintiff returned to work early in August 2020.
Relying on Plaintiff’s deposition testimony and text messages,78 Ochsner contends it is
undisputed that Plaintiff returned to work at the six-week mark of her eight-week leave
because Plaintiff was bored at home.79 Relying on her deposition testimony and human
resources complaint file,80 Plaintiff contends she returned to work not only because she
was bored at home, but also because she was asked to return to work by Ms. Bright and
feared retaliation and discrimination if she did not acquiesce.81
Fourth, the parties dispute whether Ms. Bright was Plaintiff’s supervisor. Relying
on Plaintiff’s deposition testimony,82 Ochsner contends it is undisputed that Ms. Bright
was not Plaintiff’s supervisor at the time of the call.83 By contrast, relying on the
deposition of Dr. Roberts and Ms. Leone,84 as well as Plaintiff’s human resources
complaint file,85 Plaintiff contends the departure of multiple Ochsner leaders in summer
75 R. Doc. 22-1 at p. 4, ¶ 21.
76 R. Doc. 22-3 at pp. 55-57.
77 R. Doc. 40 at p. 3, ¶ 21.
78 R. Doc. 22-3 at pp. 57-59, 61; R. Doc. 22-5.
79 R. Doc. 22-1 at ¶¶ 22-27.
80 R. Doc. 22-3 at pp. 55, 58-62; see also R. Doc. 31-2.
81 R. Doc. 40 at ¶¶ 22-27.
82 R. Doc. 22-3 at pp. 35, 72-73.
83 R. Doc. 22-1 at ¶¶ 28.
84 R. Doc. 22-12 at p. 8; R. Doc. 22-16 at p. 37.
85 R. Doc. 31-2.
2020 disrupted the structure of supervision and Ms. Bright was one of Plaintiff’s
supervisors when Plaintiff returned from leave in August 2020.86
Fifth, the parties dispute the motivations for Ochsner’s implementation of a
coaching plan in September 2020. Ochsner contends it is undisputed that a coaching plan
was implemented as a result of complaints made by Ms. Makan.87 Pointing to the
deposition testimony of Ms. Leone and Ms. Hammons,88 Plaintiff argues it is disputed
“that the sole motivation for implementing the coaching plan was to address Deepika’s
remarks” as the coaching plan-related “[m]eetings . . . devoted significant time discussing
other allegations against plaintiff” and “continued for weeks after Ms. Makan left her job
at Ochsner.”89
Sixth, the parties dispute whether Plaintiff acknowledged that her position was not
one that could be performed in a fully remote capacity. Ochsner contends it is undisputed
that Plaintiff “acknowledged . . . her position was not one that could be performed in a
fully remote capacity,” citing her deposition testimony.90 Plaintiff denies this is
undisputed because the deposition testimony relied on by Ochsner only stands for the
proposition that “Plaintiff acknowledged . . . certain positions in research were only very
rarely performed remotely and that certain positions required certain amounts of in
person work.”91
Seventh, the parties dispute whether Ms. Wendt felt uneasy when she was sent the
photographs of Plaintiff’s exposed chest on August 10, 2020. Citing Ms. Wendt’s
86 R. Doc. 40 at ¶ 28.
87 See generally R. Doc. 22-2 at ¶ 35.
88 R. Doc. 22-16 at pp. 38-41; R. Doc. 22-15 at pp. 39-41.
89 R. Doc. 40 at ¶ 35.
90 R. Doc. 22-2 at ¶ 43 (citing R. Doc. 22-3 at pp. 43-44).
91 R. Doc. 40 at ¶ 43 (citing R. Doc. 22-3 at pp. 43-44).
deposition testimony,92 Ochsner contends it is an undisputed fact that, when Ms. Wendt
received the photographs, she felt uneasy and uncomfortable because she had never seen
Plaintiff fully topless before, and had only ever seen photographs of incisions when
Plaintiff asked medical questions within Ms. Wendt’s expertise.93 Relying on evidence to
establish the nature of Plaintiff’s and Ms. Wendt’s friendship, Plaintiff argues Ms. Wendt
did not feel harassed or offended by the photographs.94
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate only “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.”95 “An issue is material if its resolution could affect the outcome of the action.”96
When assessing whether a material factual dispute exists, the Court considers “all of the
evidence in the record but refrains from making credibility determinations or weighing
the evidence.”97 All reasonable inferences are drawn in favor of the non-moving party.98
There is no genuine issue of material fact if, even viewing the evidence in the light most
favorable to the non-moving party, no reasonable trier of fact could find for the non-
moving party, thus entitling the moving party to judgment as a matter of law.99
If the dispositive issue is one on which the moving party will bear the burden of
persuasion at trial, the moving party “must come forward with evidence which would
‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’”100 If the
92 R. Doc. 22-13 at p. 56.
93 R. Doc. 22-2 at p. 9, ¶ ¶¶ 56-58.
94 R. Doc. 40 ¶¶ 56-58.
95 FED. R. CIV. P. 56. See also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
96 DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005).
97 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008). See also
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000).
98 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
99 Smith v. Amedisys, Inc., 298 F.3d 434, 440 (5th Cir. 2002).
100 Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263–64 (5th Cir. 1991) (quoting Golden Rule Ins.
Co. v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)).
moving party fails to carry this burden, the motion must be denied. If the moving party
successfully carries this burden, the burden of production then shifts to the non-moving
party to direct the Court’s attention to something in the pleadings or other evidence in the
record setting forth specific facts sufficient to establish that a genuine issue of material
fact does indeed exist.101
If the dispositive issue is one on which the non-moving party will bear the burden
of persuasion at trial, as in this case, the moving party may satisfy its burden of production
by either (1) submitting affirmative evidence that negates an essential element of the non-
movant’s claim, or (2) affirmatively demonstrating that there is no evidence in the record
to establish an essential element of the non-movant’s claim.102 If the movant fails to
affirmatively show the absence of evidence in the record, its motion for summary
judgment must be denied.103 Thus, the non-moving party may defeat a motion for
summary judgment by “calling the Court’s attention to supporting evidence already in the
record that was overlooked or ignored by the moving party.”104 “[U]nsubstantiated
assertions are not competent summary judgment evidence. The party opposing summary
judgment is required to identify specific evidence in the record and to articulate the
precise manner in which that evidence supports his or her claim. ‘Rule 56 does not impose
upon the district court a duty to sift through the record in search of evidence to support a
party’s opposition to summary judgment.’”105
101 Celotex, 477 U.S. at 322–24.
102 Id. at 331–32 (Brennan, J., dissenting).
103 See id. at 332.
104 Id. at 332–33. The burden would then shift back to the movant to demonstrate the inadequacy of the
evidence relied upon by the non-movant. Once attacked, “the burden of production shifts to the nonmoving
party, who must either (1) rehabilitate the evidence attacked in the moving party’s papers, (2) produce
additional evidence showing the existence of a genuine issue for trial as provided in Rule 56(e), or (3) submit
an affidavit explaining why further discovery is necessary as provided in Rule 56(f).” Id. at 332–33, 333 n.3.
105 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotex, 477 U.S. at 324;
Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) and quoting Skotak v. Tenneco Resins, Inc., 953 F.2d
909, 915–16 & n.7 (5th Cir. 1992)).
LAW AND ANALYSIS
Defendant moves for summary judgment on five of Plaintiff’s claims: (1) her
discrimination claim under the ADA; (2) her retaliation claim under the ADA; (3) her
retaliation claim under the FMLA; (4) her failure to accommodate claim under the ADA;
and (5) one of her interference claims under the FMLA.106 The Court addresses
Defendant’s arguments below.
I. Ochsner is not entitled to summary judgment on Plaintiff’s ADA
discrimination claim.
Under the ADA, a covered employer “shall [not] discriminate against a qualified
individual with a disability because of the disability of such individual in regard to job
application procedures, the hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and privileges of
employment.”107 A “qualified individual with a disability” is “an individual with a
disability who, with or without reasonable accommodation, can perform the essential
functions of the employment position that such individual holds or desires.”108
“Disability” is defined as “(A) a physical or mental impairment that substantially limits
one or more of the major life activities of [an] individual; (B) a record of such an
impairment; or (C) being regarded as having such an impairment.”109
When an ADA plaintiff relies upon circumstantial evidence, the Court applies the
traditional McDonnell Douglas burden-shifting analysis.110 In this case, both parties
apply the McDonnell Douglas burden shifting analysis. Accordingly, for the purpose of
resolving the instant motion, the Court assumes this is a circumstantial evidence case. “To
106 R. Doc. 22.
107 42 U.S.C. § 12112(a).
108 42 U.S.C. § 12111(8).
109 42 U.S.C. § 12102(2)(A)-(C).
110 See McInnis v. Alamo Cmty. Coll. Dist., 207 F.3d 276, 279 (5th Cir.2000).
establish a prima facie discrimination claim under the ADA, a plaintiff must prove: (1)
that he has a disability; (2) that he was qualified for the job; [and] (3) that he was subject
to an adverse employment decision on account of his disability.”111 “Once the plaintiff
makes his prima facie showing, the burden [of production] ... shifts to the defendant-
employer to articulate a legitimate, non-discriminatory reason for the adverse
employment action.”112 If the defendant-employer carries its burden of production, “the
plaintiff must then offer sufficient evidence to create a genuine issue of material fact either
(1) that the defendant's reason is not true, but is instead a pretext for discrimination
(pretext alternative).”113 A reason is pretextual if it is false, “unworthy of credence,” or
otherwise unpersuasive.114
A. Prima Facie Showing of ADA Discrimination
For the purpose of the instant Motion for Summary Judgment, Defendant agrees
Plaintiff can satisfy the first two elements of a prima facie ADA discrimination claim but
argues there is “no evidence that [Plaintiff’s] disability [of cancer] was causally connected
to the only adverse employment action she experienced, her termination,” i.e., Plaintiff
cannot satisfy the third element.115 In opposition, Plaintiff concedes her disability is
cancer and that the only adverse employment action she experienced was termination.116
However, Plaintiff argues that she can satisfy the prima facie causation requirement
because, inter alia, there is close temporal proximity between Plaintiff’s request for
111 E.E.O.C. v. LHC Group, Inc., 773 F.3d 688, 697 (5th Cir. 2014).
112 See McInnis, 207 F.3d at 280.
113 Rachid v. Jack In The Box, Inc., 376 F.3d 305, 312–13 (5th Cir.2004) (citations and internal quotation
marks omitted).
114 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000).
115 R. Doc. 22-2 at p. 20.
116 R. Doc. 31 at pp. 10-11.
accommodations on October 16, 2020, on account of her disability and her October 30,
2020 termination.117
The Court finds Evans v. East Baton Rouge Parish School Board persuasive in its
analysis. In Evans, a school teacher sued the East Baton Rouge Parish School Board,
bringing claims for alleged violations of the ADA and FMLA.118 The school board moved
for summary judgment on, inter alia, the teacher’s ADA discrimination claim arguing
there was no genuine dispute of material fact with respect to the element of causation.119
Relying on cases from the Fifth Circuit, the district court disagreed, finding that a close
temporal proximity existed between the teacher’s request for accommodations on account
of his disability in June 2017 and his termination on August 16, 2017.120
Applying the reasoning of Evans to the case at bar, Plaintiff can show close
temporal proximity between at least one of her requests for accommodations on account
of her disability and the adverse employment action she suffered. Specifically, and even
by Ochsner’s own telling, “[i]n October of 2020, Plaintiff sought additional
accommodation under the ADA, which was communicated . . . to [Ochsner].”121 This
request was made on October 16, 2020, due to Plaintiff’s disability.122 “Plaintiff was
subsequently terminated on October 30, 2020.”123 Thus, a 14-day gap in time exists
between this request for accommodations on account of Plaintiff’s disability and her
subsequent termination. A reasonable jury, on account of close proximity, could infer
117 Id. at p. 11.
118 2022 WL 698062, at *1 (M.D. La. 3/8/2022) (Dick, J.).
119 Id. at *9.
120 Id.
121 R. Doc. 22-2 at p. 11.
122 Id. (“due to treatments or complication”); see also R. Doc. 22-6 at p. 4.
123 R. Doc. 22-2 at p. 15.
causation. Accordingly, viewing the evidence in the light most favorable to the non-
moving party, Plaintiff has presented a prima facie case of retaliation.124
B. Burden Shifts to Defendant to Proffer Reasons for the Adverse
Employment Action
When a plaintiff establishes a prima facie claim of retaliation, the burden shifts to
the employer. The employer must merely articulate a legitimate, nondiscriminatory
reason for its employment action.125 In this case, Defendant articulates Plaintiff’s
termination was for one reason:
Plaintiff’s employment was terminated for a legitimate, non-discriminatory
reason—namely, her violation of Ochsner’s Anti-Harassment policy by
sending unwelcomed pictures of her exposed upper body to her
subordinate, Ms. Wendt, in an effort to spam her. Specifically, Plaintiff had
sent her subordinate Ms. Wendt numerous, non-work related texts to which
Ms. Wendt had not responded. Plaintiff then stated [in a text], “[s]ince you
don’t care about me anymore, I’ll just spam you with shit,” followed by the
unwelcomed photos. . . . [in which] Plaintiff was posing in various ways to
show off her exposed breasts.126
“The employer’s burden is only one of production, not persuasion, and involves no
credibility assessment.”127 Defendant has articulated a neutral reason for its termination
of Plaintiff and, accordingly, has met its burden of production. “The employee must [now]
present evidence that the articulated reason is pretextual.”128
C. Burden Shifts to Plaintiff to Demonstrate Defendant’s Reason for
the Adverse Employment Action Is Pretext for Discrimination
“In response to a motion for summary judgment, an employee must present
‘substantial evidence’ that the employer’s legitimate, nondiscriminatory reason for
124 Lyons v. Katy Independent School Dist., 964 F.3d 298, 305 (5th Cir. 2020) (quoting Medina v. Ramsey
Steel Co., 238 F.3d 674, 684 (5th Cir. 2001) (internal quotation omitted)).
125 Id.
126 R. Doc. 22-2 at p. 21.
127 McCoy v. Shreveport, 492 F.3d 551, 557 (5th Cir. 2007).
128 Delaval v. PTech Drilling Tubulars, LLC, 824 F.3d 476, 479 (5th Cir. 2016).
termination is pretextual.”129 “Pretext is established ‘either through evidence of disparate
treatment or by showing that the employer’s proffered explanation is false or ‘unworthy
of credence.’”130
There is a genuine dispute of material fact as to whether Ochsner’s proffered
explanation is worthy of credence. Defendant contends it fired Plaintiff because she
violated Ochsner’s Anti-Harassment Policy when she texted post-surgery photographs to
her subordinate April Wendt on August 10, 2020.131 April Wendt reported the texts on
October 20, 2020, to an Ochsner human resources representative through the social
media site Facebook.132 In so doing, April Wendt reported to Ochsner the photographs
made her uncomfortable.133 Ochsner then conducted an investigation. Ten days later,
Plaintiff’s employment was terminated.134 To justify its decision, Ochsner points to the
portion of the Anti-Harassment Policy that defines “[h]arassment as, among other
actions, . . . ‘[o]ffensive physical actions, written or spoken, and graphic communication
(e.g.[,] obscene hand or finger gestures of sexually explicit drawings).’”135
By contrast, Plaintiff’s theory is that Plaintiff did not violate Ochsner’s Anti-
Harassment Policy,136 Ochsner failed to conduct a proper investigation into April Wendt’s
report initially communicated via Facebook,137 and Ochsner truthfully terminated
Plaintiff’s employment—as the supervisor of clinical trials—on account of her need for
intermittent remote work and other future accommodations requests due to her disability
129 Id. at 480.
130 Id. (quoting Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003) (quoting Wallace v. Methodist Hosp.
Sys., 271 F.3d 212, 220 (5th Cir. 2001))).
131 R. Doc. 22-2 at p. 13.
132 Id. at p. 14.
133 Id.
134 R. Doc. 22-2 at p. 10, ¶ 65.
135 Id. at p. 16.
136 R. Doc. 31 at p. 7.
137 Id.
given the increased pressure on the healthcare system during the COVID-19 pandemic
and Ochsner’s role as a site for a COVID-19 vaccination clinical trial.138 Simply, Plaintiff
argues Ochsner was fed up with her requests for accommodation and FMLA leave, and
Ms. Wendt’s report was a welcomed opportunity to terminate Plaintiff’s employment.
In terms of evidence that Plaintiff did not violate the Anti-Harassment Policy,
Plaintiff points to deposition testimony to dispute whether the photographs were
“offensive,” as that word is used in Ochsner’s Anti-Harassment Policy, given the context
of Plaintiff’s friendship with April Wendt. As a sample, April Wendt testified she had a
personal friendship with Plaintiff and they regularly texted each other.139 Indeed, they
were close enough friends that April Wendt accompanied Plaintiff to cancer treatments
and was listed as an agent on Plaintiff’s medical power of attorney for healthcare
decisions.140 April Wendt testified that she felt “fine” when Plaintiff made a Facebook post
thanking April Wendt for serving as her “personal nurse” throughout her chemotherapy
treatments.141 Ms. Wendt regularly answered Plaintiff’s medical questions over the phone
and via text. Sometimes, a question texted to Ms. Wendt included a picture of Plaintiff’s
incisions near her upper chest, which April Wendt testified in her deposition she did not
find intrusive.142 Plaintiff testified that, at around the time Ms. Wendt reported her
concerns to a human resources representative over Facebook on October 20, 2020, about
photographs she received two months earlier, Plaintiff was “having performance issues
with” Ms. Wendt and “having tough conversations with her” about her work.143 Along
those lines, on October 12, 2020, Ms. Wendt texted Plaintiff as follows:
138 Id. at p. 13.
139 See R. Doc. 22-13 at pp. 30-31.
140 See id. at pp. 35, 36, 37, 39
141 Id. at p. 44.
142 Id. at p. 52.
143 R. Doc. 22-3 at p. 141.
I don’t hate you if ur worried about that. I just don’t like being lied to & don’t
like being thrown under the bus. I don’t do that to people I call friends. I
don’t like feeling like I get told 1 thing & you tell others different stories. If I
can’t trust anything you say then we will have problems.
That last sentence was not a threat, fyi.144
All of this to say, though Ochsner contends “[t]he photographs and text messages Plaintiff
sent Ms. Wendt speak for themselves and clearly violated Ochsner’s anti-harassment
policy,”145 the Court cannot step into the shoes of the jury to resolve the issue of whether
the photographs were “offensive” in light of the context of Plaintiff’s friendship with Ms.
Wendt.
In terms of evidence that Ochsner failed to conduct a proper investigation, the
Court finds Dr. Mark Roberts’ testimony relevant here. Dr. Roberts, who is the dean at
Ochsner that decided to terminate Plaintiff’s employment,146 testified in his deposition
that an investigation of a relatively similar report of an alleged “uncomfortable” exchange
of photographs might involve taking statements from other co-workers to understand the
context of the communication and looking at the history of the relationship of the two
employees to give further context to those communications.147 As Ochsner concedes, the
human resources representative who led the investigation, Lara Leone, found the
personal friendship between Plaintiff and Ms. Wendt “was not an important part of [the]
investigation.”148 On this basis, the Court finds there exists a genuine dispute of material
fact as to whether the investigation conducted was proper—even as defined by Ochsner’s
decisionmakers.
144 R. Doc. 40-6 at p. 159.
145 R. Doc. 44 at p. 7.
146 Ochsner also contends Lara Leone was a relevant decision maker. R. Doc. 44 at p. 6.
147 R. Doc. 22-12 at pp. 35-36.
148 Id. at p. 14.
In terms of evidence that Ochsner in reality terminated Plaintiff’s employment
because Plaintiff needed to work remotely intermittently and would likely need future
accommodations on account of her disability, Plaintiff points to evidence of the increased
pressure on the healthcare system during the COVID-19 pandemic and Ochsner’s role as
a site for a COVID-19 vaccination clinical trial. Dr. Roberts testified “[t]he complexity
around being a potential site [for the COVID-19 vaccine clinical trial] was very
substantial”149 and that it was “imperative for [Plaintiff] to physically be present” given
“the work of a clinical research supervisor.”150 Dr. Roberts also testified he had some
knowledge of Plaintiff’s medical status and potential need for future accommodations.151
With all of that context, in addition to the close temporal proximity between
Plaintiff’s request for intermittent remote work and termination, Plaintiff contends a
reasonable jury could find Ochsner’s proffered explanation is pretext for discrimination.
The Court agrees. The Court finds, with respect to the reason stated by Defendant for
terminating Plaintiff, Plaintiff has shown there is a conflict in substantial evidence that
casts into doubt the credence of Ochsner’s stated reason. The jury must weigh the
credibility of the evidence to resolve the factual disputes outlined above. If Plaintiff’s
position is proven, a reasonable jury could infer discrimination was the real motive for
Plaintiff’s termination. Accordingly, Defendant’s Motion for Summary Judgment must be
denied on Plaintiff’s claim of disability discrimination under the ADA.
149 R. Doc. 22-12 at p. 15.
150 Id. at p. 19. While the Court is cognizant that Dr. Roberts also testified he “was willing to find ways to
have [Plaintiff] work a portion of the time remotely,” the Court finds such testimony may be incompatible
with his testimony that Plaintiff’s job could not be done remotely. The jury must resolve such conflict.
151 Id. at pp. 17-20.
II. Ochsner is not entitled to summary judgment on Plaintiff’s ADA
retaliation claim.
Plaintiff brings an ADA retaliation claim against Ochsner. In order to establish a
prima facie case of retaliation under the ADA, a plaintiff must show, at trial, that:
(1) she participated in an activity protected under the statute; (2) her
employer took an adverse employment action against her; and (3) a causal
connection exists between the protected activity and the adverse action. If
the employee establishes a prima facie case, the burden shifts to the
employer to state a legitimate, non-retaliatory reason for its decision. After
the employer states its reason, the burden shifts back to the employee to
demonstrate that the employer's reason is actually a pretext for
retaliation.152
For purposes of summary judgment, Defendant agrees Plaintiff can establish a
prima facie case of ADA retaliation.153 Defendant only disputes whether Plaintiff can
create a genuine dispute of material fact that the stated reason for Plaintiff’s termination,
violating the Anti-Harassment Policy, was pretext for retaliation for “Plaintiff engag[ing]
in activity protected by the ADA when she requested accommodation via Sun Life in
October 2020.”154 The Court’s has found, supra, there is a genuine dispute of material fact
as to whether Ochsner terminated Plaintiff’s employment because Plaintiff, inter alia,
needed to work remotely intermittently (i.e., on account of the October 2020 request to
Sun Life). Accordingly, Defendant’s Motion for Summary Judgment must be denied on
Plaintiff’s claim of retaliation under the ADA.
III. Ochsner is not entitled to summary judgment on Plaintiff’s FMLA
retaliation claim.
Plaintiff brings a claim for FMLA retaliation, arguing that she was terminated by
Ochsner in retaliation for taking and requesting FMLA leave. “Retaliation claims for
152 Feist v. Louisiana, Dep't of Justice, Office of the Atty. Gen., 730 F.3d 450, 454 (5th Cir. 2013). This is the
McDonnell Douglas burden shifting framework.
153 R. Doc. 22-2 at pp. 24-25.
154 Id. at p. 24.
exercising FMLA rights are subject to the McDonnell Douglas burden-shifting
framework.”155 To make a prima facie case, “the employee must show that ‘(1) he engaged
in a protected activity, (2) the employer discharged him, and (3) there is a causal link
between the protected activity and the discharge.’”156 Then, as the Fifth Circuit has
explained it,
If a plaintiff establishes a prima facie case of retaliation, the burden shifts
to the employer to provide a ‘legitimate, non-discriminatory reason for the
employment decision.’ If the employer articulates a legitimate, non-
discriminatory reason for the employment decision, the burden returns to
the plaintiff, who must then be afforded an opportunity to rebut the
employer's purported explanation with evidence that the reason given is
merely pretextual.157
As with Plaintiff’s ADA discrimination and retaliation claims, both parties in this case
apply the McDonnell Douglas burden shifting analysis. Accordingly, for the purpose of
resolving the instant motion, the Court assumes this is a circumstantial evidence case.
For the purpose of summary judgment, “Ochsner does not dispute that Plaintiff
engaged in protected activity when taking FMLA leave from July 1-August 17, 2020, or
when she sought FMLA leave in October 2020 for her upcoming hysterectomy surgery in
December.”158 Defendant argues summary judgment is appropriate for two reasons: (1)
Plaintiff cannot make a prima facie case for FMLA retaliation because “there is no
evidence of any causal connection between Plaintiff’s July-August FMLA leave and her
termination over two months after she returned from leave, as the sole cause for Plaintiff’s
termination was her violation of Ochsner’s anti-harassment policy;”159 and (2) if she can
155 Amedee v. Shell Chemical, L.P., 953 F.3d 831, 835 (5th Cir. 2020).
156 Id. (quoting Tatum v. S. Co. Servs., 930 F.3d 709, 713 (5th Cir. 2019) (alterations omitted)).
157 Garcia v. Penske Logistics, L.L.C., 631 Fed.Appx. 204, 210 (5th Cir. 2015) (internal citations omitted).
158 R. Doc. 22-2 at p. 28.
159 Id. Notably, Defendant does not argue Plaintiff cannot establish a causal connection between Plaintiff’s
termination and her request for FMLA leave in October 2020 for her upcoming hysterectomy surgery. See
id.
establish prima facie retaliation, “summary judgment is appropriate for the same reasons
as discrimination and retaliation under the ADA,” i.e., because there is no evidence of
pretext.160
With respect to Ochsner’s first argument, Plaintiff is entitled to rely on close
temporal proximity, meaning there is “evidence of a[] causal connection between
Plaintiff’s July-August FMLA leave and her termination”161 on October 30, 2020.162 The
Fifth Circuit measures temporal proximity from the last day of an employee’s FMLA leave
until the adverse employment action at issue occurs.163 Thus, the Court must decide
whether there is sufficiently close temporal proximity between August 17, 2020 (the end
of Plaintiff’s July to August FMLA leave) and October 30, 2020 (the day Plaintiff was
terminated)—approximately two and a half months. There exists no hard-and-fast rule to
determine how much of a gap in time between the protected activity and adverse
employment action is too much time. The Fifth Circuit has held a period of two and one-
half months between the protected activity and the adverse employment action may be
enough to enable a reasonable jury to infer causation.164 In a different case, the Fifth
Circuit held nearly three months was not within the very close proximity that is necessary
to establish causation.165 These differing outcomes reveal the fact-intensive nature of the
inquiry involved in determining whether a plaintiff may rely upon temporal proximity to
establish prima facie causation. Accordingly, the Court finds that a reasonable jury, on
account of close proximity, could infer causation between Plaintiff’s protected activity of
taking FMLA leave from July to August and her termination in October.
160 Id. at pp. 28-29.
161 Id. at p. 28.
162 R. Doc. 31 at p. 11.
163 Amsel v. Texas Water Dev. Bd., 464 Fed.Appx. 395, 401-02 (5th Cir. 2013).
164 Richard v. Cingular Wireless, LLC, 233 Fed.Appx. 334, 338 (5th Cir. 2007).
165 Amsel, 464 Fed.Appx. 401-02.
With respect to Ochsner’s second argument, the Court’s has found, supra, there is
a genuine dispute of material fact as to whether Ochsner’s stated reason for termination
is pretext for discrimination and retaliation. Accordingly, Defendant’s argument that
“summary judgment is appropriate for the same reasons as discrimination and retaliation
under the ADA,” i.e., because there is no evidence of pretext, fails.166 Ochsner is not
entitled to summary judgment on Plaintiff’s FMLA retaliation claim.
IV. Ochsner is entitled to summary judgment on Plaintiff’s ADA failure to
accommodate claim.
Plaintiff brings an ADA failure to accommodate claim against Ochsner. The ADA
prohibits an employer from discriminating against a “qualified individual with a disability
on the basis of that disability.”167 The Act defines “disability” as “a physical or mental
impairment that substantially limits one or more major life activities.”168 The statute also
allows for suits by plaintiffs who, though not actually disabled as the Act defines that
word, are “regarded as having such an impairment.”169 A “qualified individual” means an
individual who, with or without reasonable accommodation, can perform the essential
functions of the employment position that such individual holds or desires.170
Discrimination under the ADA includes “not making reasonable accommodations
to the known physical or mental limitations of an otherwise qualified individual with a
disability . . . unless such covered entity can demonstrate that the accommodation would
166 R. Doc. 22-2 at pp. 28-29. The Court has considered and hereby rejects Defendant’s additional arguments
that Plaintiff cannot show pretext because (1) Ochsner allowed Plaintiff to take FMLA leave throughout her
employment and (2) Plaintiff testified in her deposition no one ever made any negative comments or
suggestions regarding her taking of FMLA leave. Id. The parties concede this is a circumstantial evidence
case, and Ochsner’s arguments miss this point.
167 EEOC v. LHC Group, Inc., 773 F.3d 688, 694 (5th Cir. 2014) (quoting 42 U.S.C. § 12112(a)).
168 42 U.S.C. § 12102(1)(A).
169 Id. § 12102(1)(C).
170 42 U.S.C. § 12111(8).
impose an undue hardship on the operation of the business of such covered entity.”171 This
type of ADA discrimination claim is referred to as a “failure to accommodate” claim. The
elements of an ADA failure to accommodate claim are that (1) the plaintiff is a qualified
individual with a disability; (2) the disability and its consequential limitations were
known by the employer; and (3) the employer failed to make (denied) reasonable
accommodations for such known limitations.172
Notably, the enumerated elements above do not include proof of an adverse
employment action, such as a demotion or a termination—an adverse employment action
of this nature is not a required element of an ADA failure to accommodate claim. Rather,
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.173 The “adverse” conduct by the employer that triggers an ADA failure
to accommodate claim is the employer's denial of the employee's reasonable
accommodation request.174
The “reasonableness” of the requested accommodation is a crucial part of the
plaintiff's prima facie case and therefore she bears the burden of proof at trial as to
reasonableness.175 In making a reasonable accommodation the ADA requires employers
to make “[m]odifications or adjustments to the work environment, or to the manner or
circumstances under which the position held or desired is customarily performed, that
enable a qualified individual with a disability to perform the essential functions of that
171 Amedee v. Shell Chem., L.P., 953 F.3d 831, 837 (5th Cir. 2020) (citing § 12112(b)(5)(A) (emphasis
added)).
172 Thompson v. Microsoft Corp., 2 F.4th 460, 467 (5th Cir. 2021).
173 EEOC v. LHC Group, Inc., 773 F.3d 688, 703 n.6 (5th Cir. 2014).
174 See Windhauser v. Board of Supv. for La. State Univ., 360 Fed. Appx. 562, 566 (5th Cir. 2010).
175 Riel v. Electronic Data Sys. Corp., 99 F.3d 678, 683 (5th Cir. 1996).
position . . . .”176 But “[t]he ADA does not require an employer to relieve an employee of
any essential functions of his or her job, modify those duties, reassign existing employees
to perform those jobs, or hire new employees to do so.”177
An implicit requirement of the plaintiff's prima facie case for a failure to
accommodate claim is that she demonstrates she actually requested the accommodation
that she claims to have been denied. Thus, at trial, the plaintiff must demonstrate not only
that the accommodation at issue is reasonable but also that she requested it.178 After all,
if the employee fails to request an accommodation the employer cannot be held liable for
failing to provide it.179
Assuming the plaintiff has satisfied all of the elements of her prima facie case for
the failure to accommodate, the burden then shifts to the employer to demonstrate that
the requested reasonable accommodation would impose an undue hardship on the
operation of the employer's business.180 The term “undue hardship” means an action
requiring significant difficulty or expense, when considered in light of factors such as the
type of operation or operations of the covered entity, including the composition,
structure, and functions of the workforce of such entity; the geographic separateness,
administrative, or fiscal relationship of the facility or facilities in question to the covered
entity.181
With these precepts in mind, the Court now turns to the three required elements
of an ADA 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
176 LHC Grp., 773 F.3d at 698 (citing 29 C.F.R. § 1630.2(o) (1)(ii)).
177 Id. (citing Burch v. City of Nacogdoches, 174 F.3d 615, 621 (5th Cir. 1999)).
178 Clark, 952 F.3d at 587 (citing Jenkins v. Cleco Power, LLC, 487 F.3d 309, 315 (5th Cir. 2007)).
179 Id. at 587 n.71 (citing Taylor, 93 F.3d at 165).
180 Chevron Phillips Chem., 570 F.3d at 614 (citing 42 U.S.C. § 12112(b)(5)(A)).
181 42 U.S.C. § 12111(10)(A)-(B)(iv).
employer; and (3) the employer failed to make (denied) reasonable accommodations for
such known limitations.182 For the purpose of summary judgment, Defendant only casts
into doubt Plaintiff’s ability to prove the third element.183
With respect to the third element, Ochsner argues the only time it denied a request
for accommodations by Plaintiff was in October 2020.184 During that month, Plaintiff
made a request for a remote work accommodation, which was communicated to Ochsner
by Ochsner’s third party FMLA administrator, Sun Life.185 Specifically, in an email dated
October 16, 2020, Sun Life employee Casey Hatten emailed Ochsner’s Dr. Mark Roberts
as follows:
Good afternoon,
We have received a medically certified accommodation request for Cathryn
Garvey. The employee is requesting to work from home for 2 months.
Can this be accommodated?186
On Monday, October 19, 2020, Dr. Roberts responded to Hatten’s email:
Good afternoon:
Thank you for allowing me to consult with other leaders overseeing the work at
Kenner.
We will not be able to accommodate the request to work remotely from Kate
Garvey (Leggio). I provide reasons for this decision here:
Kate’s role includes providing direct contributions to research subjects
along with her site lead/supervisor role. These include:
o Consenting research patients into studies
o Phlebotomy
o Research subject instruction/training
We do not have sufficient staffing, such as an additional clinical research
coordinator, at Kenner to meet the needs of currently active research
projects (see below)
182 Thompson v. Microsoft Corp., 2 F.4th 460, 467 (5th Cir. 2021).
183 R. Doc. 22-2 at pp. 17-18.
184 Id. at pp. 18-19.
185 See Undisputed Facts supra.
186 R. Doc. 22-6 at p. 4.
Supervising research staff remotely is very difficult given the complexity of
the work
The Kenner Janssen COVID Vaccine Study is taking place in four trailers
and the Medical Office Building; two designated site leads, including Kate
Garvey (Leggio), are crucial during times when all 5 locations are in use.
o Monitor flow, reduce bottleneck, provide guidance to patients who
are lost/confused, be the go to for staff operation questions.
o Make changes to process or flow as deemed necessary based on
observation
This work cannot be accomplished remotely.
Other Kenner studies are active too and the research staff under Kate is now
at 50% capacity
o We are down a Clinical Research Coordinator (Deepika); therefore,
Kate is needed to offset the FTE loss
o Kenner Clinical Research Nurse (April) is needed for the Janssen
COVID vaccine injections which also impacts existing Kenner studies
Kate’s current Manager support under Sam Bright, Director and Dr.
Roberts, Ansley Hammons, is not available to be physically present at
Kenner given requirements for her work at the Baptist CTU187
Following his October 19, 2020 email to Sun Life’s Casey Hatten, Dr. Roberts
emailed Plaintiff on October 21, 2020, asking for a meeting to “discuss [her] expectations
for working remotely.”188 Plaintiff responded the same day to Dr. Roberts’ email,
clarifying that her request for remote work is “supposed to cover if [Plaintiff] ever needed
to work remotely due to treatments or complications.”189 In response, Dr. Roberts re-
urged his request for a meeting to get a “sense of [Plaintiff’s] needs . . . during the two
month period” associated with Plaintiff’s request.190 On October 26, 2020, Dr. Roberts,
Ansley Hammons, and Plaintiff met to discuss, inter alia, Plaintiff’s request for remote
work.191 During that meeting, it was agreed Ochsner would “accommodate to the degree
possible [Plaintiff’s] need to work remotely.”192
187 Id. at p. 3.
188 Id. at p. 2.
189 Id. at p. 1.
190 Id.
191 R. Doc. 22-1 at p. 8, ¶ 48; R. Doc. 40 at p. 6, ¶ 48.
192 R. Doc. 22-7 (e-mail from Ansley Hammons summarizing the October 26 meeting—the summary of
which Plaintiff confirmed accurately “sums up today’s huddle”).
Ochsner contends, on the basis of Dr. Roberts’ deposition testimony, that Dr.
Roberts understood the request communicated by Sun Life on October 16, 2020, as a
request for consecutive remote work for two months. After Dr. Roberts denied that
request, the email exchange between Dr. Roberts and Plaintiff is best understood as
Plaintiff clarifying she was actually requesting a remote work option on an as needed basis
given her cancer treatments. In response to that request for periodic remote work,
Ochsner contends, Dr. Roberts engaged in the interactive process by meeting with
Plaintiff on October 26, 2020. Dr. Roberts testified that Plaintiff’s request for remote
work on an as needed basis was then approved. Indeed, all of these facts are
undisputed.193 Thus, Ochsner argues, “the only request for accommodation Dr. Roberts
denied was not actually requested by Plaintiff” and points to case law holding that “[a]n
implicit requirement of the plaintiff’s prima facie case for failure to accommodate is that
[s]he actually requested the accommodation that [s]he claims to have been denied.”194
In opposition, Plaintiff does not dispute that she never requested two-months of
consecutive remote work, nor does she point to any other instance of a failure to
accommodate by Ochsner.195 Instead, Plaintiff argues (1) “it is disputed whether Dr.
Roberts perceived the request to work remotely for two months, full time, as an earnest
request from Plaintiff;” and (2) “Plaintiff was not afforded the chance to engage in the
interactive process to receive accommodations[] because she was fired . . . on October
30[,] 2020[,]” two weeks after her October 16, 2020 request for intermittent remote
work.196
193 See Undisputed Facts supra.
194 R. Doc. 22-2 at pp. 17, 18-19 (internal quotations omitted).
195 R. Doc. 31; see also R. Doc. 1 (Plaintiff’s complaint, in which she brings a failure to accommodate claim
but does not allege any specific instance where Ochsner failed to accommodate her).
196 R. Doc. 31.
With respect to Plaintiff’s first argument, i.e., that there is a dispute of fact as to
whether Dr. Roberts understood Sun Life’s communication of Plaintiff’s request to be that
of a request for consecutive remote work or as needed remote work, Plaintiff offers no
explanation why this dispute is material to the issue of whether she was denied a
reasonable accommodation. Even if the Court accepts as true that Dr. Roberts understood
Plaintiff’s request as communicated by Sun Life on October 16, 2020, as a request for
intermittent remote work, which request Dr. Roberts initially denied, it is undisputed that
Dr. Roberts subsequently granted the accommodation. Plaintiff must create a genuine
dispute of material fact that Ochsner denied her a reasonable accommodation, and
Plaintiff’s argument about Dr. Roberts’ “perception” of the requested communicated by
Sun Life does not help Plaintiff achieve that end.
With respect to Plaintiff’s second argument, i.e., that Plaintiff was not afforded the
chance to engage in the interactive process to receive accommodations because she was
fired two weeks after her October 16, 2020 request for intermittent remote work, Plaintiff
conflates her failure to accommodate claim with a claim for failure to engage in the
interactive process. These are two separate claims.197 Accordingly, Plaintiff’s second
argument in opposition fails to create a genuine dispute of material fact that Plaintiff was
denied a reasonable accommodation.
In sum, Plaintiff has presented no evidence to create a genuine dispute of material
fact with respect to the third element of her failure to accommodate claim: that her
employer failed to make (denied) reasonable accommodations.198 Accordingly, Ochsner
is entitled to summary judgment on this claim.
197 See Loulseged v. Akzo Nobel, Inc., 178 F.3d 731, 735 (5th Cir. 1999).
198 Thompson v. Microsoft Corp., 2 F.4th 460, 467 (5th Cir. 2021).
V. Ochsner is entitled to summary judgment on one of Plaintiff’s FMLA
interference claims.
Defendant argues “Plaintiff’s claim for FMLA interference [only] arises out of her
own unsupported, self-serving allegation that an Ochsner employee, Samantha Bright,
requested that she return to work prior to the end of her approved FMLA leave.”199 At the
outset, Ochsner’s contention is incorrect. While it is true Plaintiff brings an FMLA
interference claim on the basis of Samantha Bright’s phone call, Plaintiff also brings an
FMLA interference claim on the basis of her assertions of retaliation and termination by
Ochsner.200 Accordingly, the Court finds Defendant has moved only for summary
judgment with respect to Plaintiff’s FMLA interference claim on the basis of Samantha
Bright’s phone call and will address only that claim here. Plaintiff’s FMLA interference
claim on the basis of retaliation and termination by Ochsner will proceed to trial.
The FMLA allows an employee to take reasonable leave for medical reasons or to
care for a family member and prohibits an employer from interfering with, restraining, or
denying the exercise or attempt to exercise FMLA rights.201 To establish a prima facie
interference case, at trial, Plaintiff must show (1) she was an eligible employee; (2)
Defendant was an employer subject to the FMLA's requirements; (3) she was entitled to
leave; (4) she gave proper notice of the intent to take FMLA leave; (5) Defendant denied
the benefits to which she was entitled under the FMLA; and (6) she was prejudiced.202
Interference claims do not require a showing of discriminatory intent.203
199 R. Doc. 22-2 at p. 26.
200 See R. Doc. 1 at p. 9, ¶ 40; R. Doc. 40 at p. 2, ¶ 15; see also Crain v. Schlumberger Technology Co., 2017
WL 713673, at *2 (E.D. La. 2/23/2017) (Milazzo, J.) (recognizing the existence of an FMLA interference
claim where termination of employment interfered with an employee’s right to FMLA leave). The Court
refrains from sua sponte analyzing whether Plaintiff can prevail on her interference claim on the basis of
retaliation and termination.
201 29 U.S.C. §§ 2601, 2615.
202 Lanier v. Univ. of Texas Sw. Med. Ctr., 527 Fed.Appx. 312, 316 (5th Cir. 2013).
203 Jones v. Children's Hosp., 58 F.Supp.3d 656, 668 (E.D. La. 2014) (Morgan, J.).
For the purpose of summary judgment, Defendant concedes Plaintiff was an
eligible employee (the first element), Defendant was an employer subject to FMLA’s
requirements (the second element), Plaintiff was entitled to leave (the third element), and
Plaintiff gave proper notice of her intent to take FMLA leave (the fourth element).204
Instead, Defendant argues Plaintiff cannot create a genuine dispute of material fact that
she was denied the benefits to which she was entitled under the FMLA (the fifth element)
and that Plaintiff was prejudiced (the sixth element).205 In opposition, Plaintiff offers no
argument in her briefing suggesting there is a triable issue of fact with respect to her
interference claim on the basis of the Samantha Bright phone call.206
Be that as it may, in her amended response to Defendant’s statement of
uncontested material facts, Plaintiff seems to suggest there is a genuine dispute of
material fact with respect to the last two elements of her FMLA interference claim calling
into question the basis for Ochsner’s Motion for Summary Judgment because “Plaintiff
was [asked] to come back early from her medical leave because of Ochsner’s efforts to
participate in COVID vaccine trials.”207 In terms of evidence, Plaintiff cites to her
deposition testimony, which establishes Plaintiff took FMLA leave from July 1, 2020
through August 17, 2020, for Plaintiff’s “double mastectomy with lymph node dissection
and expander placement.”208 Ochsner uses a third-party, Sun Life, to manage employees’
requests for FMLA leave.209 Sun Life approved Plaintiff for eight weeks of FMLA leave,
204 R. Doc. 22-2 at p. 26.
205 Id. at pp. 26-27.
206 See R. Doc. 31 (offering no argument with respect to Plaintiff’s interference claim).
207 R. Doc. 40 at p. 2.
208 R. Doc. 22-3 at p. 54.
209 Id. at p. 52.
but Plaintiff came back to work early—at the six week mark.210 Plaintiff testified that she
came back to work early because she
received a phone call from Samantha Bright talking about the Pfizer trial
and how people were burning out because of COVID and the trial and
talking about how . . . the Pfizer trial was going on and how the Janssen trial
was going to be opening while the Pfizer trial was going to still be running
and asked if [Plaintiff] could come back and if [Plaintiff] really still needed
to be out.211
Plaintiff further testified that she came back to work a week after her phone call with
Samantha Bright.212 Ochsner does not present evidence to rebut Plaintiff’s version of the
Samantha Bright phone call, but instead argues Plaintiff has no evidence that the phone
call constituted coercion to return to work early.
The Fifth Circuit holds “‘[g]iving employees the option to work while on leave does
not constitute interference’” with FMLA benefits.213 “But coercing an employee to work
while on leave by making the work ‘a condition of continued employment’” or by
“threaten[ing] [an employee] with an adverse consequence” would “constitute
impermissible interference.”214 Plaintiff does not argue or point to evidence to create a
genuine dispute of material fact as to whether Samantha Bright, when she called to ask
Plaintiff if she could return to work early, threatened Plaintiff with an adverse
consequence. Instead, the evidence pointed to by Plaintiff only establishes Samantha
Bright telephoned Plaintiff to ask her if she, as the supervisor of clinical trials, could
return to work early because of COVID-related clinical research needs in the height of the
pandemic. The FMLA does not prevent an employer from calling an employee while she
210 Id. at pp. 54-55.
211 Id. at p. 55 (emphasis added).
212 Id. at p. 56.
213 Lindsey v. Bio-Medical Applications of Louisiana, L.L.C., 9 F.4th 317, 323 (5th Cir. 2021) (quoting
D’Onofrio v. Vacation Publ’ns, Inc., 888 F.3d 197, 210 (5th Cir. 2018)).
214 Id. at 323-24 (quoting D’Onofrio, 888 F.3d at 210).
is on FMLA leave to pose such a question in the absence of evidence of coercion. Thus,
the Court finds summary judgment on Plaintiffs FMLA interference claim on the basis of
the Samantha Bright phone call is in order.215
CONCLUSION
For the foregoing reasons, IT IS ORDERED that Defendant’s Motion for
Summary Judgment2!6 is GRANTED IN PART and DENIED IN PART. With respect
to Plaintiffs ADA discrimination claim, ADA retaliation claim, and FMLA retaliation
claim, Ochsner’s Motion for Summary Judgment is DENIED. With respect to Plaintiffs
ADA failure to accommodate claim and FMLA interference claim on the basis of Ms.
Bright’s phone call, Ochsner’s Motion for Summary Judgment is GRANTED.
New Orleans, Louisiana, this 14th day of April, 2023.
SUSIE coke
UNITED STATES DISTRICT JUDGE
215 To the extent Plaintiff would argue, had she briefed the issue, that there is sufficient evidence of coercion
because she testified in her deposition she subjectively felt pressured to return to work given Ms. Bright’s
phone call, see R. Doc. 22-3 at p. 60, the Fifth Circuit holds such evidence is insufficient to create a genuine
dispute of material fact that an employer required an employee to perform job duties while on leave as a
condition of continued employment. See Lindsey, 9 F.4th at 324.
216 R, Doc. 22.
3A