Pritchard v. Merakey Pennsylvania

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

SHREVEPORT DIVISION

STEPHANIE PRITCHARD CIVIL ACTION NO. 5:18-CV-1403

VERSUS JUDGE ELIZABETH ERNY FOOTE

MERAKEY PENNSYLVANIA MAGISTRATE JUDGE HORNSBY

MEMORANDUM RULING

Plaintiff Stephanie Pritchard (“Pritchard”) brings this action against her former

employer, Defendant Merakey Pennsylvania! (“Merakey”). Pritchard alleges that Merakey

violated Title VII of the Civil Rights Act by engaging in gender discrimination, retaliation, and

disability discrimination. [Record Documenti 11 at 1]. Merakey has now filed a motion for

summary judgment. [Record Document 30]. Pritchard opposed the motion and objected to

two exhibits submitted in support of Merakey’s motion. [Record Document 32 at 1-2]. For

the reasons stated below, Merakey’s motion [Record Document 30] is GRANTED.

BACKGROUND

Merakey is a non-profit company providing “behavioral health services” through teams

of specialists collaborating to “provide complete mental health and other supportive services”

to individuals struggling with “severe and pervasive mental illness.” [Record Document 30-2

at 1]. Pritchard began working for Merakey in January 2011 as an administrative assistant with

job duties including updating and maintaining records of each staff members’ contacts with

1 The Defendant was formerly known as “NHS Pennsylvania.” [Record Documents

11 at 1 and 12 at 3].

the clients, taking notes at morning staff meetings, conducting surveys with clients regarding

their satisfaction with the services recetved, and “maintain[ing] consumer, employee and

departmental confidentiality and confidential information as per [Merakey] policies and

procedures.” [Record Documents 30-3 at 1-2 and 30-13 at 2-5).

Pritchard’s employment seemingly continued without incident until May 2017. At this

time, Pritchard received a “Supervision Record” for failing to properly pass along two phone

messages to team leaders. [Record Document 30-7]. In July 2017, she received “1st level

counseling” for sending unprofessional emails. [Record Document 30-8 at 1]. In August 2017,

Pritchard received “final counseling” in response to several other incidents, including failing

to propertly submit employee’s time reports, failing to properly maintain a personnel file, and

disclosing private information about a program director. [Record Document 30-9].

According to Merakey, on November 9, 2017, Merakey Assistant State Director

Louisiana Adult Services, Jessica McNabb (“McNabb”), received reports that a client, AB,?

indicated to two Metakey employees that Pritchard told him confidential information about

internal staffing decisions. [Record Document 30-15 at 1]. On the morning of November 15,

2017, McNabb received another report that AB told a staff member that he was unhappy

about the staffing decision and that Pritchard was the source of his information. [Record

Document 30-15 at 2]. This 1s when McNabb says she asked the program director, Lindsey

Walker (“Walker”), to gather written statements from the three individuals AB spoke to about

this so she could terminate Pritchard. [Record Document 30-15 at 2]. That afternoon,

2 To protect the client’s confidentiality, the Court will only identify him by his initials.

[Record Document 8].

Pritchard reported that AB had touched her breast in the parking lot. [Record Document 30-

15 at 2]

According to Pritchard, AB began sexually harassing her in May 2017. [Record

Document 32-2 at 83]. During a series of encounters, he engaged in behaviors such as

massaging her shoulders, placing his chin on top of her head, and one time rubbing his face

against hers. [Record Document 32-2 at 83-90]. The worst incident occurred on November

15, 2017 in the Merakey parking lot when AB approached Pritchard and put his arms around

her, cupping her left breast in his right hand. [Record Document 32-2 at 92, 102]. Pritchard

maintains that she repeatedly told AB his behavior was not appropriate and reported it to

Walker multiple times. [Record Document 32-2 at 85-90, 94]. To Pritchard’s knowledge,

Walker took no action to stop AB’s behavior. [Record Document 32-2 at 85-87, 89-91].

Pritchard admits she never reported AB’s behavior directly to the corporate office or to the

company hotline. [Record Document 32-2 at 86].

On November 16, 2017, the day after the incident in the parking lot, Pritchard

contacted the state director, Mike Dahlhauser, and reported AB’s behavior. [Record

Document 32-2 at 95-97]. She informed him that she had post-traumatic stress disorder

(“PTSD”) and requested several days off. [Record Document 32-2 at 98-99]. Merakey granted

Pritchard’s request despite the fact that her psychiatrist would only write her an excuse for the

day Pritchard visited her office. [Record Documents 30-2 at 4 and 36-1]

On November 17, 2017, Pritchard participated in a phone conversation with Merakey

leadership to discuss measutes to ensute Pritchard felt safe returning to work. [Record

Documents 30-10 and 32-2 at 99-100]. These included implementing a “code word system”

and placing a lock on her door. [Record Document 30-11].

Pritchard returned to work on November 27, 2017. [Record Document 32-2 at 105].

She was asked to locate a misplaced file, which she did by the end of next day. [Record

Document 32-2 at 117-18]. On November 29, 2017, AB returned to the Merakey facility for

scheduled group therapy. [Record Document 32-2 at 113]. Upon seeing him, Pritchard went

into Walket’s office to avoid contact. [Record Document 32-2 at 113-14]. The next day

Pritchard acknowledged receipt of a memorandum detailing additional protective measures,

including the installation of a plexiglass window in the lobby wall and approval for Pritchard

to wotk in the chart room. [Record Document 30-16].

On December 1, 2017, McNabb terminated Pritchard’s employment. [Record

Documents 30-15 at 3, 30-17 at 2, and 32-2 at 116]. The stated reasons for her termination

included multiple disclosures of “personal and private information regarding a termination of

a former [Merakey] employee to outside agency personnel” and the failure to locate a

petsonnel file of a former employee for two days. [Record Document 30-17]. Pritchard

maintains that she was able to locate the file within the standard time allotted to provide her

supervisor with requested materials. [Record Document 32-2 at 118-119].

LAW AND ANALYSIS

I. PlaintifPs Objection to Defendant’s Exhibits

The Court will first address Pritchard’s objections to two of Merakey’s exhibits because

the Court’s ruling on this motion determines what evidence it can properly consider when

ruling on Merakey’s motion for summary judgment. [Record Document 32 at 1-2].

Federal Rule of Civil Procedure 56(c) governs what evidence is admissible to prove

that there is no genuinely disputed fact in a motion for summary judgment. Rule 56(c)(2)

ptovides that a party may object to the Court considering material in the record that “cannot

be ptesented in a form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). The

proponent of the evidence has the burden of demonstrating that the material is in admissible

form, ot can be in admissible form at trial. Fed. R. Civ. P. 56(c) advisory committee’s note to

2010 amendment.

Pritchard argues that the “Merakey Pennsylvania Integrity Policy” lacks foundation

because Pritchard testified during her deposition that she had never seen the document.

[Record Documents 30-4 and 32 at 2]. Merakey does not respond to this objection. Pritchard’s

objection based on lack of foundation is not well founded because Merakey will be able to

produce a witness who can lay a proper foundation for this document at trial.

Pritchard’s objection to this document is SUSTAINED, however, because the version

of the Merakey Pennsylvania Integrity Policy attached to Merkay’s motion lacks relevance.

Evidence is relevant if it tends “to make a fact more or less probable than it would be without

the evidence” and if the “fact is of consequence in determining the action.” Fed. R. Evid. 401.

Merakey has presented a version of the policy that states it was revised in 2018. [Record

Document 30-4 at 1]. Pritchard was terminated in 2017, and hence she never worked for

Merakey while this version of the document was in effect. Without information about what

changes may or may not have been made in the 2018 revision, the document tends to prove

nothing about Merakey’s policy during the time period relevant to this action—2017.

Pritchard further contends that the “NHS Pennsylvania Integrity Policy

Acknowledgement” lacks relevance because it corresponds to an earlier policy that has not

been submitted into evidence. [Record Documents 30-5 and 32 at 2]. Merakey again did not

respond. This objection is OVERRULED. While it is true that the first page of the exhibit

addresses an Integrity Policy that has not been submitted into evidence, the second page is

clearly relevant because it states that Pritchard was aware of her ability to make direct reports

to Merakey’s corporate office. [Record Document 30-5 at 2]. This tends to prove or disprove

the fact that Pritchard was awate of how she could report AB’s behavior to Metakey.

II. Summary Judgment Standard

Federal Rule of Civil Procedure 56(a) directs a court to “grant summary judgment 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.”3 Summary judgment is appropriate when the pleadings,

answers to interrogatories, admissions, depositions, and affidavits on file indicate that thete is

no genuine issue of material fact and that the moving party is entitled to judgment as a matter

of law. Celoterc Corp. v. Catrett, 477 U.S. 317, 322 (1986). When the burden at trial will rest on

the non-moving party, the moving party need not produce evidence to negate the elements of

the non-moving party’s case; rather, it need only point out the absence of supporting evidence.

See id. at 322-23.

3 Rule 56 was amended effective December 1, 2010. Per the comments, the 2010

amendment was intended “to improve the procedures for presenting and deciding summary

judgment motions and to make the procedures more consistent with those already used in

many courts. The standard for granting summary judgment remains unchanged.” Therefore,

the case law applicable to Rule 56 prior to its amendment remains authoritative, and this Court

will rely on it accordingly.

If the movant satisfies its initial burden of showing that there is no genuine dispute of

material fact, the nonmovant must demonstrate that there is, in fact, a genuine issue for trial

by going “beyond the pleadings” and “designat[ing] specific facts” for support. Latte v. Liquid

Air Corp., 37 F.3d 1069, 1075 (Sth Cir. 1994) (citing Celotex, 477 U.S. at 325). “This burden is

not satisfied with some metaphysical doubt as to the material facts,” by conclusory or

unsubstantiated allegations, or by a mere “scintilla of evidence.” Jd (internal quotation marks

and citations omitted). However, “[t]he evidence of the non-movant is to be believed, and all

justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc, 477 U.S. 242,

255 (1985) (citing Adickes v. S. H. Kress C Co., 398 U.S. 144, 158-59 (1970)). While not

weighing the evidence or evaluating the credibility of witnesses, courts should grant summary

judgment where the critical evidence in support of the nonmovant is so “weak or tenuous”

that it could not support a judgment in the nonmovant’s favor. Armstrong v. City of Dall, 997

F.2d 62, 67 (Sth Cir. 1993).

Additionally, Local Rule 56.1 requires the movant to file a statement of material facts

as to which it “contends there is no genuine issue to be tried.” ‘The opposing party must then

set forth a “short and concise statement of the material facts as to which there exists a genuine

issue to be tried.” W.D. La. R. 56.2. All material facts set forth in the movant’s statement “will

be deemed admitted, for purposes of the motion, unless controverted as required by this rule.”

Id.

II. Plaintiff's Sex Discrimination Claim

Pritchard alleges that Merakey engaged in sex discrimination. [Record Document 11 at

8-9]. Merakey contends that Pritchard cannot meet the Title VII requirement of demonstrating

that the harassment was “so severe ot pervasive that it destroyed her opportunity to succeed

in the workplace,” especially in light of the fact that Pritchard’s job included working with

clients seeking mental health treatment. [Record Document 30-1 at 7]. It further argues that if

the Court were to find that any incident was severe, it would be when AB touched Pritchard’s

breast. [Record Document 30-1 at 8]. Because Merakey took action immediately after

Pritchard reported this incident, Pritchard lacks a claim that it failed to remedy the situation.

[Record Document 30-1 at 8-9]. Pritchard responds that any actions Metakey took were “too

little, and too late.” [Record Document 32 at 6].

Under Title VI, harassment is “unlawful when it results in the employer

‘discriminat[ing] against any individual with respect to [her] compensation, terms, conditions,

ot privileges of employment, because of such individual’s race, colot, religion, sex, or national

origin.” Gardner v. CLC of Pascagoula, L.LL.C., 915 F.3d 320, 325 (5th Cir. 2019) (quoting 42

U.S.C. § 2000e-2(a)(1)). To establish a hostile work environment claim, the plaintiff must

ptove that she: “(1) belongs to a protected gtoup; (2) was subjected to unwelcome harassment,

(3) the harassment complained of was based on [sex]; (4) the harassment complained of

affected a term, condition, or privilege of employment; [and] (5) the employer knew or should

have known of the harassment in question and failed to take prompt remedial action.” Roya/

v. CCC R Tres Arboles, LL.C., 736 F.3d 396, 401 (5th Cir. 2013) (quoting Henandez v. Yellow

Transp., Inc, 670 F.3d 644, 651 (6th Cir. 2012)). This standard also applies when the source of

the harassment is a non-employee, like a patient or customer. Gardner, 915 F.3d at 322.

Merakey challenges Pritchard’s ability to establish the fourth element of her claim.

Sexual harassment affects a term, condition, or privilege of employment when it is “sufficiently

sevete or petvasive to alter the conditions of the victim’s employment and create an abusive

working environment.” Gardner, 915 F.3d at 325 (quoting Harris v. Forkhift Sys., Ine, 510 U.S.

17, 21 (1993)). The “severe or pervasive” standard is meant to be a “middle path between

making actionable any conduct that is merely offensive and requiring the conduct to cause a

tangible psychological injury.” Id “A plaintiff ‘must subjectively perceive the hatassment as

sufficiently severe or pervasive, and this subjective perception must be objectively

reasonable.” Id. (quoting Frank v. Xerox Corp., 347 F.3d 130, 138 (5th Cir. 2003)). Among the

considerations relevant to determining objective teasonableness ate “the frequency of the

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

mete offensive utterance; and whether it unreasonably interferes with an employee’s work

performance.” Roya/, 736 F.3d at 401 (quoting Harms, 510 USS. at 23).

Here, Pritchard has created at least a genuine issue of material fact about how she

subjectively perceived AB’s actions. She states that as a result of AB touching her breast, her

PTSD was reaggravated, she had increased depression, anxiety, crying spells, flashbacks, and

nightmares, and she had to take an antidepressant. [Record Document 32-2 at 125-27]. From

this a jury could conclude that Pritchard perceived AB’s actions to be’ severe or pervasive

enough to alter the conditions of her employment. The Court must next evaluate the objective

reasonableness.

Even without considering the fact that Pritchard’s alleged harasser was a client seeking

mental health services,* Pritchard’s harassment was not sufficiently severe or pervasive. In a

4 Merakey argues that the Court should follow the line of cases regarding caregivers

alleging harassment by patients with mental illness in this case because Pritchard worked in a

facility providing mental health services and her alleged harasser had a mental illness, like in

case with facts similar to Pritchard’s, the Fifth Circuit held that allegations of a coworker

repeatedly touching a plaintiff, at least once on the breast and thigh, and repeatedly asking for

hugs and kisses was adequate to sutvive summary judgment because the facts were sufficiently

similar to Harvill v. Westward Comm’s, L.L.C. where the Fifth Circuit found actionable a

plaintiff's allegations that a coworker engaged in behaviors such as kissing her on the cheek,

popping rubber bands at her breasts, touching her breasts multiple times, touching her

buttocks multiple times, and rubbing against her body from behind over a seven-month

period. McKzunzs v. Crescent Guardian, Inc., 189 F. App’x 307, 308-09 (th Cir. 2006); Harull, 433

F.3d 428, 435-36 (5th Cir. 2005). Importantly, the McKzunzs court assumed that the plaintiff

was touched in intimate areas of her body “on a number of occasions.” Id at 310.

Pritchard alleges that over a seven month period AB rested his chin on top of her head

at least five times, rubbed his face against hers to show her that he had shaved one time,

grabbed her hand to have her feel his beard once, “cupped” her breast once, and hugged her

and kissed the top of her head an unspecified number of times. [Record Document 32-2 at

87-92, 97]. She does not allege that AB made any inappropriate comments to her. Pritchard’s

allegations therefore fail to rise to the level found adequate to survive summary judgment in

McKinnis because she alleges only one incident where AB intimately touched her.

Furthermore, even if the Court were to find that AB cupping Pritchard’s breast one

time were severe enough to affect a term or condition of her employment, Merakey took

Gardner v. CLC of Pascagoula, L.L.C., 915 F.3d at 326-27. [Record Document 36 at 3-4]. Because

the Court finds that Prichard cannot establish a claim for discrimination even without applying

a standard that may make her claim mote difficult to prove, it declines to decide if the standard

applied to in-home or nursing home caregivers should be extended to plaintiffs in Pritchard’s

position.

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prompt remedial action after Pritchard reported the incident. Whether an employet’s response

is sufficient is a fact-specific inquiry. Harv//, 433 F.3d at 437. To avoid liability, the employer’s

response must be “reasonably calculated to end the harassment” and “an employee must take

advantage of cortective opportunities provided by the employer.” Id. (quoting Skidmore v.

Precision Printing ¢» Packaging Inc., 188 F.3d 606, 615-16 (5th Cir. 1999)).

The day after Pritchard reported that AB touched her breast, Metakey held a meeting,

which included Pritchard, to discuss a plan of action. They settled on several measures

including a code word system, placing a lock on the door, installing plexiglass in an opening

of the lobby wall, and approval for Pritchard to work in a chart room. [Record Documents

30-10 at 2, 30-11, and 30-16]. Pritchard argues these were insufficient because the next time

AB returned to Merakey she felt the need to seek refuge in her supervisot’s office. This does

not necessarily mean that Merakey’s actions were not reasonable, however, because not

enough time had passed for Merakey to reasonably have been expected to implement all safety

measures and because Pritchard did not attempt to use at least one of these measures, the code

wotd. [Record Document 30-13 at 12]. Because Pritchard cannot establish that the harassment

affected a term, condition, or privilege of employment, or that Merakey failed to take prompt

remedial action, her Title VII claim based on a hostile or abusive work environment is

DISMISSED.

IV. Plaintiff's Retaliation Claim

Pritchard also alleges that Merakey retaliated against her for reporting the sexual

harassment. [Record Document 11 at 8-9]. Merakey contends first that Pritchard never

engaged in a “protected activity” because reporting that a client sexually harassed her is not

11

reporting her emp/oyer’s discriminatory acts, as is tequired for a Title VII retaliation claim.

[Record Document 30-1 at 10]. Metrakey further argues that even if Pritchard can establish

that she engaged in a protected activity, she cannot demonstrate that this activity was the “but

for” cause of her termination. [Jd] Pritchard responds that reporting a client’s harassment is a

protected activity, especially because Merakey’s anti-harassment policy prohibits clients from

engaging in harassment. [Record Document 32 at 7-8]. She contends that Merakey’s stated

reasons for her termination are pretextual. [Record Document 32 at 8].

Title VII prohibits an employer from taking action against an employee for, among

other things, “oppos|ing] any practice made an unlawful employment practice by this

subchapter.” 42 U.S.C. § 2000e-3(a). A prima facie claim of Title VII retaliation requires a

plaintiff to establish that (1) she engaged in an activity protected by Title VII, (2) she suffered

an adverse employment action; and (3) there was a causal connection between her protected

activity and the adverse employment action. Harville v. City of Hows., Mass., --F.3d-- No. 18-

60117, 2019 WL 6906099, at *6 (5th Cir. Dec. 19, 2019). If a plaintiff can establish a prima

facie case of retaliation, the burden shifts to the defendant to provide a “legitimate non-

retaliatory reason for the employment action.” Royals, 736 F.3d at 400. The burden then shifts

back to the plaintiff to “establish that the employet’s stated reason is actually a pretext for

unlawful retaliation.” Id At the pretext stage, the plaintiff must demonstrate “but-for

causation.”° Garcia v. Prof'l Contract Servs, Inc., 938 F.3d 236, 243 (5th Cir. 2019).

5 The Fifth Circuit does not seem to have consistently required “but-for causation” at

the same step in the analysis. Compare Garcia, 938 F.3d at 243 (holding that the “heightened

but-for causation requirement applies only in the third step (the pretext stage) of the McDonnell

Douglas framework.”) with Harville, 2019 WL 6906099, at * 6 (stating that the third element in

a prima facie case of retaliation under Title VII is that there was a “but-for causal

12

Merkaey first argues that Pritchard cannot prove the first element of her prima facie

case—that she engaged in a protected activity. This is unsupported by the caselaw. In Cazn v.

Blackwell, the Fifth Circuit held that an in-home cate provider reporting inappropriate sexual

comments made to her by a client was a protected activity. Cain v. Blackwell, 246 F.3d 758, 761

(5th Cir. 2001). This is no different than the activity Pritchard engaged in by reporting AB’s

behavior to Merakey, and thus she engaged in a protected activity.

Merakey next challenges Pritchard’s ability to demonstrate the necessary causal

connection between reporting AB’s behavior and her termination. In Garcia v. Professional

Contract Services, Inc., the Fifth Circuit specifically held that “[a]t the prima facie case, a plaintiff

can meet his burden of causation simply by showing close enough timing between his

protected activity and his adverse employment action.” Garda, F.3d at 243. The court has

pteviously found that a two month period between the protected activity and the adverse

employment action is enough to establish a causal connection via temporal proximity. Id.

(citing Jones v. Robinson Prop. Grp. L.P., 427 F.3d 987, 994-95 (5th Cir. 2005). In this case, the

undisputed facts establish that McNabb, the person making the final decision to terminate

Pritchard’s employment, was made aware of Pritchard’s allegations against AB by November

15, 2017. [Record Document 30-15 at 2]. It is also undisputed that Pritchard was terminated

on December 1, 2017, two weeks after engaging in the protected activity. [Record Document

connection.”). At least for purposes of this case, the standard applied at the prima facie stage

does not change the ultimate outcome because Pritchard’s claim will still fail in the end if she

has not created at least a genuine issue of material fact about whether reporting AB’s

harassment was a but-for cause of her termination.

13

30-2 at 1]. This is less than what the Fifth Circuit has previously found sufficient, so Pritchard

has met her burden of demonstrating causation at the prima facie stage.

Having found that Pritchard has created at least a genuine dispute of material fact as

to each element of her prima facie case of Title VII retaliation,® the Court must next determine

if Merakey has stated a legitimate, non-tetaliatory reason for Pritchard’s termination. Merakey

has done this. The form terminating Pritchard’s employment states that her termination was

due to violations of the company’s confidentiality policy and the failure to locate a file in a

timely manner. [Record Document 30-17]. On their face, these reasons are legitimate and

appeat non-tetaliatory, especially given Pritchard’s prior disciplinary history. [Record

Documents 30-7, 30-8, and 30-9).

Finally, the Court must determine if Pritchard can meet her summary judgment burden

of establishing that Merakey’s stated reasons ate pretextual. Under Garcia, this requites

Prichard to establish but-for causation. Garcia, 938 F.3d at 243. A but-for causal connection

“requires proof that the unlawful retaliation would not have occurred in the absence of the

alleged wrongful action or actions of the employer.” Univ. of Texas Sw. Med. Cir. v. Nassar, 570

USS. 338, 360 (2013). “[T]emporal proximity alone is insufficient to prove but for causation,”

Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 808 (5th Cir. 2007), but “[t]he combination

of suspicious timing with other significant evidence of pretext can be sufficient to survive

summiaty judgment,” Garza, 938 F.3d at 244 (quoting Shackelford v. Deloitte C» Touche, LLLP, 190

F.3d 398, 409 (5th Cir. 1999)). Among this other evidence may be evidence of disparate

6 Termination is undisputedly an adverse employment action that satisfies the second

element of Pritchard’s prima facie case. Roya/, 736 F.3d at 400.

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treatment ot evidence “that the employer’s proffered explanation is false or unworthy of

credence.” Harville, 2019 WL 6906099 at *6.

Pritchard has failed to meet her summary judgment burden of establishing “other

significant evidence of pretext” in addition to temporal proximity to prove that Merakey’s

stated reasons for het termination wete pretextual. According to Prichard, the evidence

supporting a finding of pretext is that the letters written about the incidents allegedly involving

her wete written after she teported that AB touched her breast, that the letters at most

“alluded” to her as the person telling AB confidential information, and that she located the

missing file she was tasked with finding within a time that was acceptable in the past. She does

not have any evidence to dispute the fact that McNabb was awate of three sepatate reports

about Pritchard making AB aware of confidential information by the morning on November

15, 2017, before she reported that AB touched her breast. She does not have evidence to refute

that it was at this time that McNabb determined that terminating her employment was proper

based on the seriousness of the allegations and Pritchard’s prior disciplinary record. She

presents no evidence of other similarly situated employees receiving disparate treatment. At

most, Pritchard has established temporal proximity, a minor dispute over the acceptable

amount of time to locate a missing file, and a challenge to the evidentiary sufficiency of written

statements. This is not sufficient to establish pretext, and therefore Pritchard’s retaliation claim

is DISMISSED. Gara, 938 F.3d at 244.

V. Plaintiffs Disability Discrimination Claim

Finally, Pritchard alleges that Merakey engaged in disability discrimination. [Record

Document 11 at 8-9]. Pritchard’s complaint cites 42 U.S.C. § 2000e-5(A(3) (“Title VII”) as the

15

legal source prohibiting such discrimination. [Record Document 11 at 8]. Merkaey contends

that Pritchard’s claim of disability discrimination is governed by the Americans with

Disabilities Act (“ADA”). [Record Document 30-1 at 6]. Pritchard did not directly respond to

this argument, but subsequently cites the ADA in arguments about her claim of disability

discrimination. [Record Document 45 at 2]. Title VII does not apply to disability

discrimination and therefore the Court will adjudicate Pritchard’s disability discrimination

claim under the ADA.

Merakey argues that Pritchard is not entitled to the protections of the ADA because

she does not have a “disability” as defined by the ADA. [Record Document 30-1 at 6]. It

asserts that Pritchard cannot establish that her alleged disability, PISD, substantially limits any

major life activities as is required to have a “disability” under the ADA. [Jd] Pritchard responds

that it is illogical to find that she does not have a disability simply because she is typically able

to manage her PTSD. [Record Document 32 at 4]. She further argues that Equal Employment

Opportunity Commission (“EEOC”) regulations now dictate that the mere diagnosis of PTSD

is sufficient to establish that the diagnosed individual suffers substantial life impairments.

[Record Document 45 at 2].

The ADA prohibits an employer from discriminating against a “qualified individual”

on the basis of a “disability.” 42 U.S.C. § 12112(a). Without direct evidence of discrimination,

establishing a prima facie case under the ADA requires a plaintiff to show that: “(1) [s]he has

a disability, or was regarded as disabled; (2) [s]he was qualified for the job; and (3) [s]he was

subject to an adverse employment decision on account of [her] disability.” Caldwell v. KHOU-

TV, 850 F.3d 237, 241 (5th Cir. 2017). Ifa plaintiff can meet this burden, a “presumption of

16

discrimination arises, and the employer must ‘articulate a legitimate non-discriminatory reason

for the adverse employment action.”’ Id. (quoting Cannon v. Jacobs Field Servs. N. Am., Inc., 813

F.3d 586, 590 (5th Cir. 2016)). If the employer does so, the plaintiff then again has the burden

of producing evidence sufficient for a jury to find that the employet’s reason is pretextual. Id.

Pretext can be shown “either through evidence of disparate treatment or by showing that the

employet’s proffered explanation is false or unworthy of credence.” Id. (quoting Jackson v. Cal-

W. Packaging Corp., 602 F.3d 374, 378-79 (5th Cir. 2010)). Additionally, the Fifth Circuit has

held that for claims raised under the ADA, “an employee who fails to demonstrate pretext can

still survive summary judgment by showing that an employment decision was ‘based on a

mixture of legitimate and illegitimate motives . . . [and that] the illegitimate motive was a

motivating factor in the decision.” B.B.0.C. ». LHC Group, Ine. 773 F.3d 688, 702 (5th Cir.

2014) (quoting Machenchick v. PB Power, Inc., 398 F.3d 345, 355 (5th Cir. 2005)).

Whether or not Pritchard is “disabled” under the ADA is immaterial in this case

because her claim will ultimately fail for the same reasons as her retaliation claim—the inability

to show that Merakey’s reasons for her termination ate pretextual. Furthermore, Pritchard has

presented no evidence besides temporal proximity to suggest that Merakey had illegitimate

motives for terminating her employment. Pritchard’s disability discrimination claim is

therefore DISMISSED.

CONCLUSION

For the aforementioned reasons, Defendant’s motion for summary judgment [Record

Document 30] is GRANTED. Pritchard’s claims are DISMISSED with prejudice. A

judgment consistent with this Memorandum Ruling will issue herewith.

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THUS DONE AND SIGNED in Shreveport, Louisiana, on this, day of

January, 2020. fo

ELIZABETH E. FOOTE

UNITED STATES DISTRICT JUDGE

18