Green v. Kijakazi

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

SHREVEPORT DIVISION

FREDERICK GREEN CIVIL ACTION NO. 21-3938

VERSUS JUDGE S. MAURICE HICKS, JR.

KIOLO KIJAKAZI MAGISTRATE JUDGE MCCLUSKY

MEMORANDUM RULING

Before the Court is an unopposed Motion for Summary Judgment (Record

Document 52) filed by Defendant Martin J. O’Malley (“O’Malley”),1 Commissioner of the

Social Security Administration (“SSA”) seeking to dismiss all claims asserted by Plaintiff

Frederick Green (“Green”) under the Rehabilitation Act (“RA”).2 For the reasons contained

herein, Defendant’s unopposed Motion for Summary Judgment is GRANTED.

FACTUAL AND PROCEDURAL BACKGROUND

The present suit arises out of an employment relationship between Green and the

SSA that was terminated on March 18, 2022. See Record Document 6 at 4. Green began

working for the SSA in 2006, in the Shreveport, Louisiana field office. See Record

Document 52-3 (Green Deposition with Attachments) at 2-3. During all times relevant to

this suit, he held the position of a Claims Specialist, GS-11. See id. Green’s duties

included processing social security claims and interviewing applicants that were seeking

benefits. See id. at 4-5. Liana Smith (“Smith”) is an Operations Supervisor that was

1 Defendant Kilolo Kijakazi was terminated from this matter on January 9, 2024, and O’Malley was added

the same day.

2 Green, acting pro se, filed documents in the record identified as “exhibits.” See Record Document 28.

Magistrate Judge McClusky stated in a subsequent minute entry that without a motion, the Court will take

no action on any of those documents. See Record Document 29 at 2. Green has since filed numerous other

“exhibits” into the record. See Record Documents 30-40, 44, 47-48, 51. Like the aforementioned “exhibits,”

absent a proper motion, it is unclear what action Green wishes the Court to take. Thus, the Court will take

no action as to the “exhibits” since they do not constitute competent summary judgment evidence.

Green’s first-line supervisor from 2018 through 2022. See Record Document 52-4 (Smith

Declaration with Attachments) at 1.

On or about March 10, 2020, Green made a request for various accommodations

based on his purported Post Traumatic Stress Disorder (“PTSD”), anxiety, irritable bowel

syndrome (“IBS”), and “other related disabilities.” See Record Document 52-4 at 2; see

also Record Document 6 at 4. Green submitted a letter from a physician dated March 13,

2020, which recommended that he be allowed to work from home as he was at high-risk

for exposure to COVID-19. See Record Document 52-4 at 2. Green began working at

home full-time on March 23, 2020, after the issuance of an agency-wide evacuation order.

See id.

While the accommodations request was pending, Smith had conversations with

Green on March 10, 2020, and May 13, 2020, regarding his request. See Record

Document 52-4 at 2. Smith informed Green on May 14, 2020, that within the next thirty

days he should submit medical documentation substantiating his medical conditions and

any limitations they caused. See id. at 2. Green submitted a Veteran’s Affairs (“VA”)

medical report dated May 19, 2020, that listed his diagnoses. See id. at 3. On December

11, 2020, the National Reasonable Accommodations Coordinator (“NRAC”) issued a

decision letter to Green regarding his reasonable accommodation requests. See Record

Document 54-2 at 9. The NRAC stated that the agency would grant Green’s request for

use of an ergonomic chair while working from home. See id. at 9. The NRAC denied

Green’s other reasonable accommodation requests because the medical documentation

provided by Green did not establish that the requested accommodations were necessary

for Green to perform the essential functions of his job. See id. at 10-12.

The SSA’s Performance Assessment and Communication System (“PACS”) is

used by supervisors to rate an employee’s performance. See Record Document 52-5

(Declaration of SSA Regional Attorney Melinda Newman with Attachments) at 42-43. The

PACS offers three summary appraisal rating of record levels with clear distinctions among

those performance levels to differentiate between high level employees with a Level 5

“Outstanding Contribution” and the “more typical successful employees” at a Level 3

“Successful Contribution.” See id. at 43. Employees are also given the opportunity to

submit a self-assessment at the end of the appraisal year to highlight his or her

contributions and accomplishments made during that appraisal period. See Record

Document 52-4 at 1. Green did not submit a self-assessment in either 2019 or 2020. See

id.; see also Record Document 52-3 at 6. Green received a Level 3 rating in the four

categories provided and an overall “Successful Contribution” in both 2019 and 2020. See

Record Document 52-3 at 13; see also Record Document 52-4 at 5.

On February 23, 2021, Green filed a formal Equal Employment Opportunity

Commission (“EEOC”) complaint of discrimination alleging disparate treatment because

of his disability and retaliation based on his 2020 appraisal. See Record Document 52-5

at 27. Green claims that this annual appraisal was “sharply different” from his past

performance appraisals and the 2020 appraisal included information that was derogatory

and defamatory, describing him as a “dishonest and disrespectful employee.” Record

Document 6 at 3. Green’s formal EEOC complaint also mentioned a “failure to

accommodate disability.” See Record Document 52-5 at 32. In a letter accepting Green’s

complaint for investigation, the Agency advised Green that he would need to request

EEOC counseling with respect to his reasonable accommodation claim. See id.; see also

Record Document 52-5 at 15. The Agency then conducted a formal investigation of

Green’s complaint regarding only the PACS claim from March 22, 2021, through May 17,

2021. See id. at 17. Green did not request an EEOC hearing after receiving a Report of

Investigation on or about June 7, 2021. See id. at 15. On August 17, 2021, the SSA issued

a Final Agency Decision (“FAD”) on Plaintiff’s formal complaint of discrimination. See id.

at 2-13.

Green filed this lawsuit on November 11, 2021, seeking injunctive and monetary

relief for discrimination and retaliation in violation of the RA of 1973, 29 U.S.C. § 706 and

791. See Record Document 1. He asserted in his complaint that following the filing of this

lawsuit, Smith failed to properly approve his timesheet resulting in the reduction of his

salary. See Record Document 6 at 2. On January 28, 2022, Smith issued Green a Notice

of Proposed Removal due to alleged acts of misconduct including a refusal to attend

meetings with Smith and unauthorized cancellation or rescheduling of applicant

interviews. See Record Document 52-3 at 18; see also Record Document 52-4 at 3.

Green had a hearing regarding this notice and asserts in his complaint that he reiterated

his complaints of discrimination and retaliation. See Record Document 6 at 3. Green

claims that following the hearing regarding his removal, Smith disabled his work account

and as a result, he was unable to perform his work assignments. See id. 4. This had

occurred before, but Green asserts in his complaint that this was retaliatory conduct. See

id. Green was removed from the agency on March 18, 2022. See id. He then filed his

amended complaint on March 22, 2022, to reflect his new grievances about Smith and

his termination from the SSA. See id.

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate when the evidence before the court shows “that

there is no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” if proof of its existence or

nonexistence would affect the outcome of the lawsuit under applicable law in the case.

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986). A

dispute about a material fact is “genuine” if the evidence is such that a reasonable fact

finder could render a verdict for the nonmoving party. Id.

“[A] party seeking summary judgment always bears the initial responsibility of

informing the district court of the basis of its motion, and identifying those portions of ‘the

pleadings, depositions, answers to interrogatories, and admissions on file, together with

the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of

material fact by pointing out that the record contains no support for the non-moving party's

claim.” Stahl v. Novartis Pharm. Corp., 283 F.3d 254, 263 (5th Cir. 2002) (quoting Fed.

R. Civ. P. 56(c)). Thereafter, if the non-movant is unable to identify anything in the record

to support its claim, summary judgment is appropriate. See id. In evaluating a motion for

summary judgment, the court “may not make credibility determinations or weigh the

evidence” and “must resolve all ambiguities and draw all permissible inferences in favor

of the non-moving party.” Total E & P USA Inc. v. Kerr-McGee Oil & Gas Corp., 719 F.3d

424, 434 (5th Cir. 2013) (internal citations omitted).

In deciding unopposed summary judgment motions, the Fifth Circuit has noted that

a motion for summary judgment cannot be granted simply because there was no

opposition. See Hetzel v. Bethlehem Steel Corp., 50 F.3d 360, 362 fn.3 (5th Cir. 1995).

The movant has the burden to establish the absence of a genuine issue of material fact

and, unless it has done so, the court may not grant the motion, irrespective of whether

any response was filed. See Powell v. Delaney, 2001 WL 1910556, at 5-6 (W.D. Tex.

June 14, 2001). Nevertheless, if no response to the motion for summary judgment has

been filed, the court may find as undisputed the statement of facts in the motion for

summary judgment. See id. at 1 and n.2; see also Thompson v. Eason, 258 F. Supp. 2d

508, 515 (N.D. Tex. 2003) (where no opposition is filed, the nonmovant's unsworn

pleadings are not competent summary judgment evidence and movant's evidence may

be accepted as undisputed); UNUM Life Ins. Co. of America v. Long, 227 F. Supp. 2d

609 (N.D. Tex. 2002) (“Although the court may not enter a ‘default’ summary judgment, it

may accept evidence submitted by [movant] as undisputed.”); Bookman v. Shubzda, 945

F. Supp. 999, 1002 (N.D. Tex. 1996) (“A summary judgment nonmovant who does not

respond to the motion is relegated to his unsworn pleadings, which do not constitute

summary judgment evidence.”).

The court has no obligation to “sift through the record in search of evidence” to

support the nonmovant's opposition to the motion for summary judgment. Forsyth v. Barr,

19 F.3d 1527, 1533 (5th Cir. 1994) (citing Skotak v. Tenneco Resins, Inc., 953 F.2d 909,

915 and n. 7 (5th Cir. 1992), cert. denied, 506 U.S. 832, 113 S.Ct. 98, 121 L.Ed.2d 59

(1992)).

ANALYSIS

A. Rehabilitation Act Claims

The RA forbids discrimination based on disability in federal employment, activities

conducted by federal agencies, and programs receiving federal funds. See 29 U.S.C.

794. The RA states that “[n]o otherwise qualified individual with a disability ... shall solely

by reason of his disability ... be subjected to discrimination under any program or activity

receiving Federal financial assistance ....” 29 U.S.C. § 794(a). The RA defines disability

in the same way as the Americans with Disabilities Act (“ADA”). See Kemp v. Holder, 610

F.3d 231, 234 (5th Cir. 2010) (per curiam). Additionally, the RA and the ADA are analyzed

under the same legal standards, and both offer the same remedies. See id. However, for

the RA to be applicable, an individual must be discriminated against solely by reason of

his disability. See Harrison v. Klein Indep. Sch. Dist., 856 F. App'x 480, 482 n.2 (5th Cir.

2021).

B. Exhaustion of Administrative Remedies

O’Malley argues that Green’s claims regarding reasonable accommodations,

denial of leave requests, improperly disabling his access to his work account, and

wrongful termination are not properly pending before this Court due to Green’s failure to

exhaust administrative remedies. See Record Document 52-2 at 14. He asserts that

Green did not complete or even initiate the requisite administrative procedures before

bringing these claims in district court in his amended complaint. See id. at 11. O’Malley

concedes that the administrative remedies regarding the 2020 PACS appraisal claims

were properly exhausted. See id. at 13.

Federal employee RA claims are subject to the exhaustion requirements set forth

in Title VII. See Smith v. Potter, 400 F. App'x. 806, 811 (5th Cir. 2010) (quoting Prewitt v.

United States Postal Serv., 662 F.2d 292, 304 (5th Cir. 1981)). To properly exhaust

administrative remedies, a claimant must initiate contact and request informal counseling

from an agency EEOC counselor within 45 days of the date of the matter alleged to be

discriminatory. See Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir. 2002); 29 C.F.R.

§ 1614.105(a)(1). The 45-day period “starts running when the plaintiff knows of the

discriminatory act, not when the plaintiff perceives a discriminatory motive behind the act.”

Christopher v. Mobil Oil Corp., 950 F.2d 1209, 1217 and n.2 (5th Cir. 1992). If the

counselor is unable to resolve the matter, the federal employee must then file a charge

of discrimination with the EEOC division of her agency and receive a “right to sue” letter

before filing suit. See 42 U.S.C. § 2000e-5(e)(1); see also 29 C.F.R. § 1614.106; Pacheco

v. Mineta, 448 F.3d 783, 788 (5th Cir. 2006). Upon receipt of notice of final action taken

by the department or agency, an employee has ninety days to appeal with the EEOC or

file a suit in federal district court. See 42 U.S.C. § 2000e–16(c). Exhaustion of

administrative remedies is also a requirement in the retaliation context under the RA. See

Smith, 400 Fed.Appx. 811-12. The only claims which may be brought in federal court are

ones investigated by the EEOC or those which “can reasonably be expected to grow out

of the charge of discrimination.” Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466

(5th Cir.1970).

Regarding Green’s termination, he has failed to exhaust administrative remedies.

The Fifth Circuit found in Austin v. Potter that an employee failed to exhaust her

administrative remedies because she failed to contact with a counselor after she received

Notice of Removal stating that her employment would be terminated. See 358 Fed.Appx.

602, 605-6 (5th Cir. 2010). The former employee in Austin argued that her termination

resulted from retaliation and a hostile work environment. See id. at 604. The Austin court

noted that “[f]ederal regulations interpreting Title VII provide for an extension of the forty-

five-day period where the Title VII claimant ‘did not know and reasonably should not have

been [sic] known that the discriminatory matter or personnel action occurred.’” See id. at

605. Additionally, the Fifth Circuit stated that it occasionally permitted equitable tolling

under certain circumstances, none of which are applicable in the current case.3 Here,

O’Malley provided evidence that Green was issued Notice of Proposed Removal due to

alleged acts of misconduct, much like the plaintiff in Austin, on January 28, 2022. See id.

at 604; see also Record Document 52-3 at 18; see also Record Document 52-4 at 3.

There is no evidence that Green initiated contact with an EEOC officer within forty-five

days of when he received his Notice of Proposed Removal from Smith. Additionally,

Green has not demonstrated that he “did not know and reasonably should not have been

[sic] known that the discriminatory ... personnel action occurred,” nor has he

demonstrated any basis for equitably tolling the forty-five-day filing period. Austin, 358

Fed.Appx. 606. Thus, Green failed to exhaust his administrative remedies regarding his

termination.

Further, there is no competent summary judgment evidence that Green initiated

contact with an EEOC counselor regarding his claims that he was denied leave or that

Smith failed to properly approve his timesheet and improperly disabled his work account.

Therefore, Green failed to exhaust his remedies because he did not pursue administrative

remedies first. See Smith, 400 Fed.Appx at 812.

As stated above, the Court has jurisdiction over any claim that “can reasonably be

expected to grow out of the charge of discrimination.” Sanchez, 431 F.2d 466. The Court

3 See Austin, 358 Fed.Appx. 605 (“We have also occasionally permitted equitable tolling of the forty-five-

day period in other discrimination cases in three circumstances: ‘(1) the pendency of a suit between the

same parties in the wrong forum; (2) the plaintiff's lack of awareness of the facts supporting his claim

because of the defendant's intentional concealment of them; and (3) the EEOC's misleading the plaintiff

about his rights.’”) (citing Manning v. Chevron Chem. Co., LLC, 332 F.3d 874, 880 (5th Cir. 2003) (citing

Blumberg v. HCA Mgmt. Co., 848 F.2d 642, 644 (5th Cir.1988)).

must “engage in fact-intensive analysis of the statement given by the plaintiff in the

administrative charge, and look slightly beyond its four corners, to its substance rather

than its label.” Pacheco, 448 F.3d at 789. In his Amended Complaint, Green alleges that

he suffered retaliatory conduct including “denial of reasonable accommodations.” Record

Document 6 at 3. In Green’s 2021 formal EEOC complaint under the “Issue” section, he

included the phrase “failure to accommodate disability.” Record Document 52-5 at 27.

However, Green was advised to seek counseling regarding his reasonable

accommodation claim in the Letter of Acceptance accepting his PACS appraisal claim,

as he “did not describe or provide any supporting details or incidents as would have been

discussed with a counselor.” Record Document 52-5 at 32; see also Record Document

52-5 at 15.

While the administrative charge, rarely drawn by an attorney, must be viewed “in

its broadest reasonable sense,” “the only absolutely essential element of a timely charge

of discrimination is the allegation of fact contained therein.” Sanchez, 431 F.2d at 467.

Green provided a narrative statement in his 2021 formal EEOC complaint which detailed

his grievances against Smith regarding his PACS appraisal. See Record Document 52-5

at 29. Specifically, it stated that “[Green] feels the language changed from the 2019

appraisal to the 2020 appraisal because of EEOC activities involving himself, [S]mith, and

other members of management.” See id. at 30. The Court notes that Green’s complaint

was prepared by an attorney. See id. at 32.

In reviewing the narrative statement, the question is whether a failure to

accommodate investigation might reasonably be expected to grow out of the facts that

Green alleged. See Pacheco, 448 F.3d at 791. In deciding this question, a review of the

prima facie case for a failure to make reasonable accommodations is relevant. See id.

Discrimination based on disability includes failure to make “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

impose an undue hardship.” Thus, a plaintiff must prove the following statutory elements

to prevail in a failure-to-accommodate claim: (1) the plaintiff is a “qualified individual with

a disability;” (2) the disability and its consequential limitations were “known” by the

covered employer; and (3) the employer failed to make “reasonable accommodations” for

such known limitations. Feist v. La., Dep't of Justice, 730 F.3d 450, 452 (5th Cir. 2013)

(quoting 42 U.S.C. § 12112(b)(5)(A)) (citing Wilson v. Dollar Gen. Corp., 717 F.3d 337,

345 (4th Cir. 2013); Cloe v. City of Indianapolis, 712 F.3d 1171, 1176 (7th Cir. 2013);

Griffin v. UPS, 661 F.3d 216, 222 (5th Cir. 2011); Mzyk v. N.E. Indep. Sch. Dist., 397 F.

App'x 13, 16 n.3 (5th Cir. 2010)).

On its face, the factual allegations in Green’s formal EEOC complaint do not allege

any of the above elements of a failure to accommodate claim. Instead, it is facially a

disparate treatment discrimination claim based on his 2020 PACS appraisal. See Record

Document 52-5 at 29-30. Particularly, Green was issued a Reasonable Accommodation

Decision letter on December 11, 2020, and nowhere in the narrative statement does

Green provide any specific allegations regarding in the denial of his reasonable

accommodations request nor are there any factual allegations regarding denial of any

reasonable accommodations after that decision was rendered. See id. Further, and more

importantly, Green was notified that he must seek EEOC counseling within forty-five

calendar days of the decision if he felt that the Agency discriminated against him with

respect to the decision to deny several items in his accommodations request. See Record

Document 52-4 at 12. His formal EEOC complaint was filed on February 2, 2021, fifty-

three calendar days after the decision was rendered, and Green provided no summary

judgment evidence that he sought counseling regarding the denial of those

accommodations within the forty-five-day period. See Record Document 52-5 at 2.

As the Pacheco court noted, the Fifth Circuit does not require that a Title VII

plaintiff check a certain box or recite a specific incantation to exhaust his or her

administrative remedies before the proper agency. See Sanchez, 431 F.2d at 463–65.

Nor does the Fifth Circuit require, for purposes of exhaustion, that a plaintiff allege a prima

face case before the EEOC. See id. Instead, the plaintiff's administrative charge will be

read somewhat broadly, in a fact-specific inquiry into what EEOC investigations it can

reasonably be expected to trigger. See Pacheco, 448 F.3d at 792. The Court finds that

Green did not exhaust his administrative remedies with respect to his claim regarding a

denial of reasonable accommodations as it could not reasonably have been expected to

grow out of Green’s formal EEOC complaint because: (1) it is facially a disparate

treatment claim; (2) Green’s formal EEOC complaint contains no factual allegations

regarding the denial of his reasonable accommodations request; and (3) there is no

evidence that Green sought counseling within the requisite forty-five day period of the

alleged discrimination despite being given notice in the decision letter and in the Letter of

Acceptance given in response to his 2021 formal EEOC complaint.

Green does not allege or provide any evidence that he sought counseling, filed an

EEOC complaint, the EEOC issued a right-to-sue letter, or that he ever received a right-

to-sue letter regarding claims against O’Malley aside from the claims arising out of his

2020 PACS appraisal. Thus, to the extent Green premises his RA claims on the failure to

accommodate, denial of leave requests, improperly disabling his access to his work

account, and wrongful termination, the Court grants summary judgment for O’Malley. The

Court will analyze the discrimination and retaliation claims relating to the assertions

arising out of the 2020 PACS appraisal only as he has properly exhausted his

administrative remedies in receiving a FAD and filing suit in a timely manner.4

C. Discrimination under the RA

O’Malley asserts that Green cannot establish a prima facie case of disparate

treatment in his discrimination claim. See Record Document 52-2 at 15. He argues that

Green’s Fiscal Year 2020 PACS appraisal reflects a “successful” rating, and that he

cannot allege that the 2020 performance review constitutes discrimination in the terms,

conditions, or privileges of his employment, and that his successful performance appraisal

the same year could not have been an adverse employment action. See id. O’Malley

additionally argues that Green’s alleged disabilities played no role whatsoever in Smith’s

2020 evaluation of his work performance. See id. at 16.

When a plaintiff relies on circumstantial evidence on a discrimination claim, the

court generally analyzes the claim under the McDonnell Douglas framework, which allows

a plaintiff to create a presumption of discrimination by establishing a prima facie case of

4 Exhaustion occurs when the plaintiff files a timely charge with the EEOC and receives a statutory notice

of right to sue. See Dao v. Auchan Hypermarket, 96 F.3d 787, 788–89 (5th Cir. 1996). Title VII provides

that claimants have ninety days to file a civil action after receipt of such a notice from the EEOC. See Nilsen

v. City of Moss Point, Miss., 674 F.2d 379, 381 (5th Cir. 1982) (citing 42 U.S.C. § 2000e–5(f)(1) (1994)).

This requirement to file a lawsuit within the ninety-day limitation period is strictly construed. See Ringgold

v. National Maintenance Corp., 796 F.2d 769, 770 (5th Cir. 1986); Espinoza v. Missouri Pacific R.R. Co.,

754 F.2d 1247, 1251 (5th Cir. 1985). The FAD regarding Green’s 2020 PACS appraisal was issued on

August 17, 2021, and notified Green of his right to sue within ninety days. See Record Document 52-5 at

11-12. Green filed this suit on November 11, 2021, within the required ninety-day period (86 days after

receiving the FAD). See Record Document 1.

discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03 (1973);

see also Houston v. Texas Dep't of Agric., 17 F.4th 576, 585 (5th Cir. 2021)

(“Rehabilitation Act claims are also analyzed under the McDonnell Douglas burden-

shifting framework.”); Milton v. Nicholson, 256 F. App'x 655, 657 (5th Cir. 2007) (“The

standards used to determine whether [the Rehabilitation Act] has been violated … shall

be the standards applied under … the Americans with Disabilities Act… In a case brought

under the [ADA], the court applies the burden-shifting analysis from McDonnell

Douglas….”) (cleaned up). The elements necessary to plead a cause of action of disability

discrimination under the RA and the standards governing such claims are “operationally

identical” to those required to state a claim under the ADA. Melton v. Dallas Area Rapid

Transit, 391 F.3d 669, 676 n.8 (5th Cir. 2004). “The only material difference between the

two provisions lies in their respective causation requirements.” Bennett-Nelson v. La. Bd.

of Regents, 431 F.3d 448, 454 (5th Cir. 2005).

To establish a prima facie case for disability discrimination under the RA, Green

must identify competent summary judgment evidence showing that he: (1) has a disability;

(2) was qualified for the job; and (3) was subjected to an adverse employment decision

on account of his disability. See Taylor v. Univ. of Miss. Med. Ctr., No. 19-331, 2023 WL

3369090 at *6 (S.D. Miss. Apr. 13, 2023) (citing EEOC v. LHC Group, Inc., 773 F.3d 688,

695 (5th Cir. 2014)). The third prong usually requires plaintiffs to show a “causal nexus,”

or “causal connection,” between the adverse employment action and the employee's

disability. Id. Most importantly, it requires plaintiffs to show that the alleged disability

discrimination was the sole reason for the employer's adverse employment decision. See

Wilson v. City of Southlake, 936 F.3d 326, 329–30 (5th Cir. 2019).

Further, in its en banc Hamilton decision, the Fifth Circuit rejected its earlier

“ultimate employment decision” test for an “adverse employment action” in favor of a less

strict standard. Hamilton v. Dallas Cnty., 79 F.4th 494, 502 (5th Cir. 2023) (en banc).

Now, “a Title VII plaintiff may recover damages even for ‘discrimination in the terms,

conditions, or privileges of employment’ that ‘did not involve a discharge,’ ‘loss of pay,’ or

other ‘concrete effect on [his or her] employment status.’” Id. at 501. The Fifth Circuit

subsequently applied Hamilton in another recent decision, Harrison v. Brookhaven School

District, and held that to state a discrimination claim, a plaintiff “must allege not only an

adverse action, but something more than a de minimis harm borne of that action.” 82

F.4th 427, 431 (5th Cir. 2023) (citation omitted). The court noted that this is often referred

to as the “materiality” half of the analysis. Id. In other words, the “de minimis” and

“materiality” standards are one and the same. Dixon v. Garland, No. 23-19, 2024 WL

150509 at *4 (N.D. Tex. Jan. 12, 2024). Materiality is a shorthand characterization of the

well-established de minimis standard, which “has roots that stretch to ancient soil.”

Harrison, 82 F.4th at 423. And thus, courts must give the de minimis standard its familiar

meaning— “de minimis non curat lex (the law does not take account of trifles).” Id.

Applying this standard, a plaintiff alleges an adverse employment action if he alleges

more than de minimis discrimination in the terms, conditions, or privileges of employment.

See id.

In Harrison, the plaintiff, a black female educator and school administrator, sued

her school district for promising and then refusing to pay for her to attend a training

program for prospective superintendents. See id. at 428. Like the current case, the only

element of her claim at issue was whether she suffered an adverse employment action.

See id. at 429. The court held that Harrison “allege[d] more than a de minimis injury

inflicted on her by the School District's adverse action: the personal expenditure of

approximately $2,000.” Id. at 432. The court explained that this “is not a de minimis out-

of-pocket injury, particularly when that expense was originally promised to be paid by

someone else.” Id. Thus, the court concluded that “Harrison's injury clears the de minimis

threshold.” Id.

In a recent unpublished decision, the Dixon court analyzed several purported

adverse employment actions under the new standard provided by Hamilton and Harrison.

See Dixon, 2024 WL 150509 at *4-6. The plaintiff in Dixon claimed that receiving

“excellent” performance reviews, as opposed to “outstanding,” was an adverse

employment action. Id. at *5. The plaintiff claimed that her “excellent” reviews materially

impacted her ability to receive raises. Id. The court noted that it refused to act as the

employer’s “super-personnel department” and that it would not scrutinize the specifics of

standard performance reviews. Id. (citing Johnson v. McDonald, 623 F.App'x 701, 704

(5th Cir. 2015)). The court found that the plaintiff failed to establish her prima facie case

of discrimination as none of the alleged adverse employment actions rose above the de

minimus standard articulated in Harrison. See id. at *6.

This Court reaches a similar result in considering Green’s claim that his 2020

PACS appraisal was “sharply different” from his past performance appraisals. Record

Document 6 at 3. As stated above, the SSA’s PACS offers three summary appraisal rating

of record levels, with a Level 5 “Outstanding Contribution” and the “more typical

successful employees” at a Level 3 “Successful Contribution.” See Record Document 52-

5 at 43. The record reflects that in both his 2019 and 2020 PACS appraisals, Green

received a “Successful Contribution” appraisal, with identical scores in the “Ratings in

Individual Elements” section. Record Document 52-4 at 5; Record Document 52-3 at 13.

Additionally, Green did not use the opportunity to submit a self-assessment in either 2019

or 2020. See Record Document 52-3 at 6. In his Amended Complaint, Green seems to

base his claim on the commentary provided by Smith under each rating, claiming the

information was “derogatory and defamatory.” Record Document 6 at 3. However, like the

court in Dixon, this Court declines to scrutinize the specifics of standard performance

reviews. Therefore, given the evidence provided, O’Malley has met the burden of proving

that Green cannot establish a prima facie case of discrimination as his allegations

regarding his 2020 PACS appraisal do not rise above the de minimus standard articulated

in Harrison.5

Further, although the record reflects that Smith had knowledge of Green’s

protected activity, See Record Document 52-4 at 2, 4, Green has not proffered any proper

summary judgment evidence to establish that his disability was the sole cause of his

purportedly adverse employment action. Because he also cannot meet that high bar

regarding the third element, his disability discrimination claim must fail. See Taylor, 2023

WL 3369090 at *6.

Because the Court finds that Green has not established a prima facie case of

discrimination, it need not continue the McDonnell Douglas analysis.

5 The Court notes that, pre-Harrison, the Fifth Circuit held that a performance review, standing alone,

“plainly does not meet the ultimate-employment-decision test.” Mitchell v. Snow, 326 F. App'x 852, 855 (5th

Cir. 2009). See also Thibodeaux-Woody v. Houston Cmty. Coll., 593 F. App'x 280, 286 (5th Cir. 2014)

(“[P]erformance reviews typically constitute adverse actions only when attached to financial harms”)

(quoting Baloch v. Kempthorne, 550 F.3d 1191, 1199 (D.C. Cir. 2008)).

D. Retaliation under the RA

Like above, when a plaintiff relies on circumstantial evidence, to succeed on his

retaliation claims he must satisfy the burden-shifting McDonnell Douglas test. See Nall v.

BNSF Ry. Co., 917 F.3d 335, 340 (5th Cir. 2019). First, he must make out a prima facie

case by showing (1) engagement in protected activity, (2) an adverse employment action,

and (3) a causal connection between the two. See id. at 348–49. If he does so, O’Malley

must come forward with a legitimate, non-discriminatory reason for the adverse action.

See id. Once it does, Green must then show “sufficient evidence that the proffered reason

is a pretext for retaliation.” Id. at 349. O’Malley contests only whether Green established

a causal connection between his acts and Smith’s issuance of the 2020 PACS appraisal.

O’Malley argues that the significant gap in time between the filing of Green’s EEOC

complaints and the employment actions made subject of this suit negates causation. See

Record Document 52-2 at 19. According to the Court’s analysis above, Green has not

suffered an adverse employment action and therefore cannot meet the second element

of a prima facie case of retaliation.6 However, the Court will address O’Malley’s argument

in an abundance of caution.

To survive summary judgment, a plaintiff must demonstrate that “a causal link

exists between the protected activity” and the complained of discriminatory “terms,

conditions, or privileges of employment” or adverse employment action. Gorman v.

Verizon Wireless Tex., L.L.C., 753 F.3d 165, 170 (5th Cir. 2014); Hamilton, 79 F.4th at

499–506 (eliminating the adverse employment action requirement from a prima facie

6 The recent Hamilton and Harrison decisions also apply to retaliation claims. See Harris v. Amazon.Com,

Inc., No. 23-10556, 2024 WL 688255 at *2 (5th Cir. Feb. 20, 2024) (Vacating and remanding to allow the

district court to address Amazon’s motion to dismiss the plaintiff’s sex discrimination and retaliation claims

in light of Hamilton and Harrison).

case). To prove retaliation, Green must show that the purported adverse employment

action was actually connected to his EEOC activities. See Henderson v. Shinseki, No.

09-188, 2009 WL 4931391 at *4 (N.D. Tex. Dec. 21, 2009). While generally, a causal link

“is established when the evidence demonstrates that the employer's decision to terminate

was based in part on knowledge of the employee's protected activity,” Nall v. BNSF Ry.

Co., 917 F.3d 335, 349 (5th Cir. 2019), it can also “be established simply by showing

close enough timing between the two events.” Garcia v. Pro. Cont. Servs., Inc., 938 F.3d

236, 241 (5th Cir. 2019).

Because Green has provided no direct evidence of a causal link, the only

remaining evidence is the temporal proximity between his protected activity and the

purported adverse employment decision. “The cases that accept mere temporal proximity

between an employer's knowledge of protected activity and an adverse employment

action as sufficient evidence of causality to establish a prima facie case uniformly hold

that the temporal proximity must be ‘very close.’” Lopez-Baca v. Geren, 599 F.Supp.2d

744, 757 (W.D. Tex. 2008) (citing Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273,

121 S. Ct. 1508, 149 L.Ed.2d 509 (2001)). The Fifth Circuit has held that a period of a few

months is sufficient to satisfy causation in a prima facie case. See Outley v. Luke &

Assocs., Inc., 840 F.3d 212, 219 (5th Cir. 2016) (holding two months sufficient to show

causal connection). The Fifth Circuit recently held that “a mere six weeks” lapse in time

“does the trick.” January v. City of Huntsville, 74 F.4th 646, 653 (5th Cir. 2023). The Fifth

Circuit has also found that “a time lapse of up to four months” may be sufficiently close,

Evans v. Houston, 246 F.3d 344, 354 (5th Cir. 2001), while a five-month lapse is not close

enough without other evidence of retaliation, Raggs v. Miss. Power & Light Co., 278 F.3d

463, 472 (5th Cir. 2002). Additional evidence beyond temporal proximity alone may

include an employment record that does not support dismissal, or an employer's

departure from typical policies and procedures. See Schroeder v. Greater New Orleans

Fed. Credit Union, 664 F.3d 1016, 1024 (5th Cir. 2011).

Smith signed the PACS appraisal on November 17, 2020. See Record Document

52-3 at 17. The EEOC complaint filed in 2019 is clearly beyond the four-month threshold

for causation, although the Court was not provided a specific date. On or about March 10,

2020, Green made a request for various accommodations based on his disabilities. See

Record Document 52-4 at 2. It is undisputed that this constituted protected activity.

However, eight months and seven days passed between the above dates before Smith

issued the appraisal. Thus, absent more evidence, Green cannot prove causation

between his engaging in protected activity and the purported adverse employment action

and has not established a prima facie case of retaliation under the RA.

CONCLUSION

Based on the reasons explained above,

IT IS ORDERED that Defendant's Motion for Summary Judgment (Record

Document 52) is GRANTED. All of Green's claims against O'Malley are DISMISSED

WITH PREJUDICE.

A judgment consistent with this ruling shall issue herewith.

THUS DONE AND SIGNED, in Shreveport, Louisiana, this 6th day of March, 2024.

kiipbices/

United States District Judge

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