Opinion

Leggio v. Ochsner Clinic Foundation

Court
District Court, E.D. Louisiana
Filed
Apr 14, 2023
Cited by
0 cases
Authority
More cited than 22.4%

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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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