Feist v. Louisiana, Department of Justice, Office of the Attorney General

Case: 12-31065 Document: 00512375178 Page: 1 Date Filed: 09/16/2013

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

September 16, 2013

No. 12-31065 Lyle W. Cayce

Clerk

PAULINE G. FEIST

Plaintiff-Appellant

v.

STATE OF LOUISIANA, Department of Justice, Office of the Attorney

General

Defendant-Appellee

Appeal from the United States District Court

for the Eastern District of Louisiana

Before DAVIS, JONES, BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

Pauline G. Feist, a former assistant attorney general for the Louisiana

Department of Justice (“LDOJ”), claims that LDOJ (1) discriminated against her

in violation of the Americans with Disabilities Act (“ADA”) by declining to

provide a free on-site parking space to accommodate her disability (osteoarthritis

of the knee), and (2) violated the ADA and Title VII by terminating her

employment in retaliation for charges she filed with the U.S. Equal Employment

Opportunity Commission (“EEOC”).1

1

Feist also argues that LDOJ failed to reasonably accommodate her request for “job

restructuring” by not allowing her to work from home, but issue was not raised in the court

below, and thus need not be addressed here. See BP Exploration Libya Ltd. v. Exxonmobil

Case: 12-31065 Document: 00512375178 Page: 2 Date Filed: 09/16/2013

No. 12-31065

The district court granted summary judgment on Feist’s discrimination

claim, holding that she failed to explain how the denial of on-site parking limited

her ability to perform the “essential functions” of her job. Feist filed timely

appeal, arguing that the ADA does not require a link between a requested

accommodation and an essential job function.2

The district court also granted LDOJ’s motion for summary judgment on

Feist’s retaliation claim, finding that Feist was dismissed for poor performance

and holding that Feist produced no evidence that, but for a retaliatory motive,

LDOJ would not have dismissed her. Feist appeals, claiming that she has

evidence that any performance-based justification is mere pretext, intended to

disguise the retaliatory dismissal.

Because we find an error in the district court’s analysis of the

discrimination claim, we vacate summary judgment in part and affirm in part.

I. Standard of Review

This Court “reviews de novo the district court’s grant of summary

judgment, applying the same standard as the district court.” Fabela v. Socorro

Indep. Sch. Dist., 329 F.3d 409, 414 (5th Cir. 2003). “Summary judgment is

appropriate if the moving party can show that ‘there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.’”

United States v. Renda Marine, Inc., 667 F.3d 651, 655 (5th Cir. 2012) (quoting

FED. R. CIV. P. 56(a)). When considering a motion for summary judgment, a

court “must view all facts and evidence in the light most favorable to the

non-moving party.” Juino v. Livingston Parish Fire Dist. No. 5, 717 F.3d 431,

433 (5th Cir. 2013). In addition, an appellate court “may affirm summary

Libya Ltd., 689 F.3d 481, 493 n.9 (5th Cir. 2012).

2

Amici on this issue include the Advocacy Center and Disability Rights Texas, which

are the congressionally mandated disability “protection and advocacy” agencies for Louisiana

and Texas, respectively. See 42 U.S.C. § 15041 et seq.

2

Case: 12-31065 Document: 00512375178 Page: 3 Date Filed: 09/16/2013

No. 12-31065

judgment on any ground supported by the record, even if it is different from that

relied on by the district court.” Reed v. Neopost USA, Inc., 701 F.3d 434, 438

(5th Cir. 2012) (internal quotation marks omitted).

II. Discrimination

The ADA prohibits covered employers from “discriminat[ing] against a

qualified individual on the basis of disability.” 42 U.S.C. § 12112(a).

Discrimination 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.” Id. § 12112(b)(5)(A). Thus,

a plaintiff must prove the following statutory elements to prevail in a

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

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

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

accommodations” for such known limitations.3

The district court found that Feist is a qualified individual with a

disability and that the disability was known by the employer, and the parties do

not dispute these findings. Consequently, the sole question on appeal is whether

the district court applied the correct legal standard in determining whether

Feist’s proposed accommodation was reasonable. The court held that Feist could

not show the proposal reasonable because she “[did] not allege or demonstrate

that the parking situation limited her ability to perform the essential functions

of her job.” The LDOJ urges this Court to affirm the district court’s

interpretation. Feist, however, points out that reasonable accommodations are

3

This specific three-part formulation has not been set out by the Fifth Circuit, but

similar elements are present across cases. See, e.g., 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); see also Wilson

v. Dollar Gen. Corp., 717 F.3d 337, 335 (4th Cir. 2013); Cloe v. City of Indianapolis, 712 F.3d

1171, 1176 (7th Cir. 2013).

3

Case: 12-31065 Document: 00512375178 Page: 4 Date Filed: 09/16/2013

No. 12-31065

not restricted to modifications that enable performance of essential job functions.

The language of the ADA, and all available interpretive authority, indicate that

Feist is correct.

Under the ADA, a reasonable accommodation may include:

(A) making existing facilities used by employees readily accessible

to and usable by individuals with disabilities; and

(B) job restructuring, part-time or modified work schedules,

reassignment to a vacant position, acquisition or modification of

equipment or devices, appropriate adjustment or modifications of

examinations, training materials or policies, the provision of

qualified readers or interpreters, and other similar accommodations

for individuals with disabilities.

42 U.S.C. § 12111(9). The text thus gives no indication that an accommodation

must facilitate the essential functions of one’s position. Moreover, the requested

reserved on-site parking would presumably have made her workplace “readily

accessible to and usable” by her, and therefore might have been a potentially

reasonable accommodation pursuant to § 12111(9)(A).

The ADA’s implementing regulations also indicate that reasonable

accommodation need not relate to the performance of essential job functions.

Indeed, the regulations suggest the contrary by defining reasonable

accommodation as:

(I) Modifications or adjustments to a job application process that

enable a qualified applicant with a disability to be considered for the

position such qualified applicant desires; or

(ii) Modifications or adjustments to the work environment . . . that

enable an individual with a disability who is qualified to perform the

essential functions of that position; or

(iii) Modifications or adjustments that enable a covered entity’s

employee with a disability to enjoy equal benefits and privileges of

4

Case: 12-31065 Document: 00512375178 Page: 5 Date Filed: 09/16/2013

No. 12-31065

employment as are enjoyed by its other similarly situated employees

without disabilities.

29 C.F.R. § 1630.2(o)(1) (emphasis added). Thus, a modification that enables an

individual to perform the essential functions of a position is only one of three

categories of reasonable accommodation.4 Moreover, EEOC guidance explicitly

provides that “providing reserved parking spaces” may constitute reasonable

accommodation under some circumstances. 29 C.F.R. pt. 1630 App., § 1630.2(o).

In arriving at its conclusion, the district court cited a decision in which we

stated that “the existence vel non of a disability or impairment is material to a

reasonable accommodation claim only insofar as it limits an employee’s ability

to perform his or her job.” Burch v. Coca-Cola Co., 119 F.3d 305, 315 (5th Cir.

1997). However, Burch is inapposite because the question there was whether the

plaintiff was a “qualified individual with a disability,” which is not in dispute

here.

Therefore, because the district court erred in requiring a nexus between the

requested accommodation and the essential functions of Feist’s position, we

vacate the judgment and remand for further proceedings not inconsistent with

this opinion. We express no opinion as to whether the proposed accommodation

was reasonable, and we respectfully decline appellee’s invitation to consider

alternate grounds for affirming summary judgment on Feist’s discrimination

claim.

4

LDOJ urges this Court to simply ignore these regulations, arguing that the

regulations are not entitled to deference under Chevron U.S.A., Inc. v. Natural Resources

Defense Council, 467 U.S. 837 (1984). The assertion, however, is inconsequential because

LDOJ offers no statutory argument as to why a reasonable accommodation must facilitate an

essential job function. See Chevron, 467 U.S. at 843 (holding that courts should reach agency

interpretation only if statute is silent or ambiguous); Waldrip v. Gen. Elec. Co., 325 F.3d 652,

655 n.1 (5th Cir. 2003) (suggesting that EEOC regulations interpreting §§ 12111 and 12112

of the ADA are entitled to Chevron deference).

5

Case: 12-31065 Document: 00512375178 Page: 6 Date Filed: 09/16/2013

No. 12-31065

III. Retaliation

To establish a prima facie case of retaliation under the ADA or Title VII,

a plaintiff must show 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.

McCoy v. City of Shreveport, 492 F.3d 551, 556–57 (5th Cir. 2007) (Title VII);

Seaman v. CSPH, Inc., 179 F.3d 297, 301 (5th Cir. 1999) (ADA). “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,” LeMaire v. Louisiana, 480

F.3d 383, 388–89 (5th Cir. 2007) (internal citation omitted), which the employee

accomplishes by showing that the adverse action would not have occurred “but

for” the employer’s retaliatory motive, Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133

S. Ct. 2517, 2533 (2013) (Title VII); Seaman, 179 F.3d at 301 (ADA). In order to

avoid summary judgment, the plaintiff must show “a conflict in substantial

evidence” on the question of whether the employer would not have taken the

action “but for” the protected activity. Long v. Eastfield College, 88 F.3d 300, 308

(5th Cir. 1996) (internal quotation marks omitted).

It is uncontested that Feist established the first two elements of her prima

facie case. She participated in a protected activity when she filed complaints

with the EEOC, and the dismissal constitutes an adverse action. The question

before this Court is whether there is any evidence of the third element, a causal

connection between the activity and the adverse action.

A plaintiff alleging retaliation may satisfy the causal connection element

by showing “[c]lose timing between an employee’s protected activity and an

adverse action against him.” McCoy, 492 F.3d at 562. Such temporal proximity

6

Case: 12-31065 Document: 00512375178 Page: 7 Date Filed: 09/16/2013

No. 12-31065

must generally be “very close.” Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268,

273–74 (2001). This Court has found, for example, 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).

Such evidence 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).

The district court dismissed Feist’s retaliation claim because it found that,

other than temporal proximity of five months, she had not offered any evidence

of a causal link between the protected activity and the adverse action. LDOJ

offered a non-retaliatory justification for the dismissal, describing Feist’s

substandard work on two cases. In one case, Feist apparently failed to disclose

information that would have helped facilitate a settlement. In another, Feist

failed to timely oppose a motion for summary judgment, causing the presiding

judge to enter a $500,000 judgment against LDOJ. Based on this evidence, LDOJ

has satisfied its burden of showing a legitimate, non-retaliatory reason for

terminating Feist. See Medina v. Ramsey Steel Co., 238 F.3d 674, 684–85 (5th

Cir. 2001) (noting that evidence of poor work performance satisfies burden).

In order to survive summary judgment, then, Feist must show that LDOJ’s

proffered explanation is pretextual. In attempting to do so, Feist claims that (1)

she was terminated only two weeks after a state legislative hearing in which her

boss, the Louisiana Attorney General, was purportedly embarrassed when

questioned about Feist’s claim; (2) her record of good performance does not

support dismissal; and (3) LDOJ deviated from standard practice by dismissing

her when a colleague had a longer record of allegedly more serious mistakes.

7

Case: 12-31065 Document: 00512375178 Page: 8 Date Filed: 09/16/2013

No. 12-31065

Yet a review of the record suggests that Feist has mischaracterized the

pertinent facts. The transcript of the hearing indicates that the questioner was

not critical of Feist’s boss, but rather was confused by and even skeptical of

Feist’s claim. There is no indication that her boss was embarrassed by the line

of questioning. And with respect to Feist’s colleague who had also mishandled

cases, the record indicates that he—just like Feist—was dismissed due to the

poor performance. Thus, Feist’s reference to her colleague’s case actually

weakens Feist’s claim by demonstrating LDOJ’s consistent response to

substandard performance. Cf. Long, 88 F.3d at 308–9 (holding that positive

performance reviews, coupled with evidence that no other employee had been

terminated for employer’s stated reason, were sufficient to overcome summary

judgment).

So while Feist may dispute the egregiousness of her errors at work, she

offers no evidence that LDOJ would not have terminated another employee for

the same mistakes. Therefore, because LDOJ has offered a non-retaliatory

explanation for Feist’s dismissal, and because Feist has presented no evidence of

pretext, the summary judgment dismissing the retaliation claim is affirmed.

IV. Conclusion

For the reasons stated herein, the judgment of the district court is

AFFIRMED IN PART AND VACATED AND REMANDED IN PART.

8