Billups v. Vilsack

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

DENNIS BILLUPS * CIVIL ACTION NO. 23-2103

*

VERSUS *

* MAGISTRATE JUDGE

THOMAS VILSACK, SECRETARY OF * JANIS VAN MEERVELD

THE DEPARTMENT OF *

AGRICULTURE *

*

*********************************** *

ORDER AND REASONS

This is a disability discrimination in employment lawsuit. Before the Court are the

plaintiff’s Motion for Summary Judgment and the defendant’s Motion for Summary Judgment.

(Rec. Docs. 25, 26). Plaintiff has failed to exhaust administrative remedies for any claim of

constructive discharge, disparate treatment, or adverse employment action arising out of a two

week period of leave without pay. Further, even if plaintiff had been a qualified individual with a

reasonable accommodation available to him, he abandoned the interactive process and as a result,

his employer cannot be held liable for failing to grant a reasonable accommodation. For the

following reasons, defendant’s Motion is GRANTED and plaintiff’s Motion is DENIED.

Background

During the relevant period, plaintiff Dennis Billups was employed as a Supervisory Human

Resources Specialist, GS-201-14, Branch Chief at the United States Department of Agriculture

(“USDA”) National Finance Center in New Orleans.1 Shandon Davis, Human Resources Officer,

was Billups’ first-line supervisor.2 At the time of Billups’ retirement in December 2019, he had

completed over 30 years of federal service.3

1 ECF No. 26-4, at 1.

2 ECF No. 29-1, at 2.

3 ECF No. 26-4, at 1.

Although the alleged discrimination occurred in 2019, it may be relevant to the feasibility of

accommodations to note that Billups worked for approximately nine months in a telework status at

an emergency work location in 2017 while he was deployed to Bossier City, Louisiana, as part of

USDA’s Continuity of Operations Plan (COOP).4 According to Billups, he effectively performed all

essential functions of his position during this deployment period while teleworking.5 In February

2018, Billups was issued and agreed to a “USDA Telework Agreement” that approved him for

“situational” telework but specifically disapproved him for “regularly scheduled” telework.6

In December 2018, Billups began requesting sick leave due to his medical condition.7

Billups submitted notes from his physician, Dr. Whitehead, dated January 28, 2019, and February

6, 2019, to his supervisor, Davis.8 The January 28, 2019, note stated only “Dennis Billups is

currently under my medical care and may not return to [work]. Please excuse Dennis Billups from

1/28/2019 – 2/6/2019.9 The February 6, 2019, note stated that Billups was “a current patient under

my care. Patient is being evaluated for a medical condition. Patient is excused from reporting to

the work site until cleared by me” and that Billups “needs to be allowed to telecommute to work

1 to 2 times a week.”10 In his deposition testimony, Billups explained that Dr. Whitehead was

4 Id. at 3.

5 Id. Billups cites the affidavit of Dawn Hughes-Morris who was the Human Resource Director and first level

supervisor for Billups and Davis at the time. ECF No. 26-18, at 2. She explains that COOP was implemented because

a tornado severely damaged several work buildings in February 2017. Id. Both she and Billups were deployed to the

alternate work site in Bossier City, LA. Id. at 2-3. She reported that like all supervisors “we continued performing the

duties of our position.” Id. at 3. USDA argues these statements are immaterial.

6 ECF No. 26-4, at 2; ECF No. 26-8.

7 ECF No. 25-2, at 2. Records reflect the last day he physically reported for duty was December 10, 2018. ECF. No.

25-8.

8 ECF No. 25-2, at 2; ECF No. 25-6. Billups’ medical condition is completely unidentified or described in this

paperwork. ECF No. 25-6; ECF 25-7.

9 ECF No. 25-6.

10 ECF No. 25-7.

requesting that Billups be allowed to telecommute one to two times a week and be excused from

work for the other three to four days per week.11

On March 6, 2019, Billups’ supervisor Shandon Davis sent Billups a letter acknowledging

receipt of Dr. Whitehead’s letters and reporting that the documentation was insufficient.12 The

letter noted Dr. Whitehead’s recommendation that Billups be allowed to telecommute to work one

to two times a week.13 The letter listed out five options for Mr. Billups: return to duty, request a

reasonable accommodation, apply for disability retirement, apply for leave under the Family and

Medical Leave Act of 1993 (FMLA), or resign.14 The “return to duty” option included a request

that Billups provide a statement from his medical care provider as to whether Billups is able to

perform the essential duties of his job on a full time basis and, if not released to full duty, a request

that he submit no later than March 21, 2019, medical information regarding the nature, severity,

and duration of his condition with an expected date of full or partial recovery, the activities that

his condition limits, and the extent to which the condition limits his ability to perform the full

duties of his position.15 The “reasonable accommodation” option included the instruction that his

request list all accommodations that would be necessary in order to perform the duties of his

position and a statement of the risk associated with each accommodation.16 It further instructed

that he submit this information by mail or email to Jenna Shaner, Departmental Management

Reasonable Accommodation Coordinator (“RAC”).17

11 ECF No. 25-19, at 7. The paperwork does not reflect what Dr. Whitehead intended with regard to the three to four

days a week Billups would not be teleworking.

12 ECF No. 25-8, at 1.

13 Id.

14 Id.

15 Id.

16 Id.

17 Id. at 1-2.

On March 21, 2019, Billups first contacted Shaner regarding his accommodation request.18

Attached to his email was a note from his treating physician, Dr. Whitehead, dated March 19,

2019.19 On March 22, 2019, RAC Shaner responded asking Billups to resend Dr. Whitehead’s

March 19, 2019, medical note.20 Billups responded and resent the document on the same day.21 In

the medical note, Dr. Whitehead reported that he had referred Billups for additional neurological

evaluation.22 He stated that Billups was capable of performing the duties of his position, but he

opined that Mr. Billups should limit his work hours and not commute back and forth to his normal

place of work “until a complete neurological assessment can be performed.”23 He cited back to the

“accommodation” identified in the February 6, 2019, note and stated it was the “preferred

accommodation.”24

By letter dated March 28, 2019, Davis notified Billups that he was being charged as Absent

Without Leave (“AWOL”) for the pay period running from March 18, 2019, through March 29,

2019, because he had not submitted additional medical documentation by March 21, 2019, as

required by the March 6, 2019, letter.25

Meanwhile, Shaner responded to Billups’ March 22 email on April 9, 2019, stating that the

medical documentation was insufficient to determine his disability.26 She asked that Billups have his

medical care provider complete an attached form or write a note that addressed each question on the

form.27 She also asked that Billups respond to a series of questions (such as, what accommodation(s)

18 ECF No. 25-2, at 4.

19 Id.

20 Id.

21 Id.

22 ECF No. 25-17, at 1.

23 Id.

24 Id.

25 ECF No. 26-11, at 5.

26 ECF No. 25-15, at 3.

27 Id.

do you think will help you?).28 She further stated that “[i]f you are requesting a temporary

accommodation until a further assessment is made, that is something you can work out with your

supervisor as well.”29

Billups responded the same day stating that he was confused as to whether he was supposed

to answer the questions in the email and his physician was supposed to separately answer the

questions in the form.30 He also expressed confusion about whether his physician was supposed to

fill out the form without the benefit of the pending evaluation from the specialist to which Billups

had been referred.31 He also reported that he did not believe Shaner’s request was consistent with

USDA policy.32

On April 17, 2019, Billups’ supervisor, Davis, sent Billups a second letter referencing the

previously sent March 6, 2019, letter and again stating that the January 28, 2019, and February 6,

2019, medical notes were insufficient.33 The letter cited and attached the Attendance and Leave

Policy, quoting the section providing that a supervisor may request a medical certificate or more

detailed medical documentation.34 The letter stated that “[i]n an effort to make a determination

regarding the appropriate course of action, and your suitability for duty, the Agency is requesting

medical documentation accordingly.”35 It stated further that “[t]he purpose of this request will also

determine the basis for any conclusion that restrictions or accommodations are warranted, or may

not be warranted, and an opinion of how the medical condition impacts the performance of your

duties.”36

28 Id.

29 Id.

30 Id.

31 Id.

32 Id.

33 ECF No. 25-9, at 1.

34 Id.

35 Id.

36 Id.

On April 30, 2019, Billups emailed Davis (his immediate supervisor) and two other

supervisors.37 He reported that, “[a]s stated in [his] previous medical statement,” he had completed

his April 19, 2019, neurology appointment and was scheduled for an MRI, which was completed on

April 25, 2019.38 He reported that the results of the MRI had not yet been provided to his primary

care physician, who would be the one to provide the documentation requested on April 17, 2019.39

He asked for an extension of time to provide the documentation.40 He stated that he had concerns

about the HR office maintaining confidential and sensitive information and reported that his medical

information was being provided as part of an “Accommodation Request.”41 He requested that it be

provided “directly to Jenna Shaner, USDA RA Coordinator, for evaluation and coordination with the

designated point of contacts, as appropriate.”42

Davis responded to Billups’ April 30, 2019, email on May 6, 2019, via letter.43 Davis granted

the requested extension and stated that the final deadline for documentation was May 16, 2019.44

The letter explained that if Billups was applying for any of the options outlined in the March 6 letter

(including a reasonable accommodation), he was “still required to adhere to the Agency leave

requesting procedures.”45 The letter also reminded Billups that he must communicate his request for

leave and provide supporting documentation through his immediate supervisor.46

On or about May 7, 2019, Davis received the medical certification form completed by Dr.

Whitehead.47 Dr. Whitehead reported that Billups had been diagnosed with chronic ischemic

37 ECF No. 25-2, at 3.

38 ECF No. 25-10, at 1.

39 Id.

40 Id.

41 Id.

42 Id.

43 ECF No. 25-2, at 3.

44 ECF No. 25-11, at 1.

45 Id. at 2.

46 Id.

47 ECF No. 25-2, at 3.

microangiopathy and that he was experiencing a chronic worsening memory impairment.48 He

reported that given the worsening memory issues, Billups should use caution when driving because

his condition could increase his risk for sleeping while driving.49 He certified that Billups was

partially medically incapacitated, but did not provide a start or end date.50 He certified that Billups

was able to work eight hours per day five days per week.51 He advised that Billups be allowed to

“telecommute to work unless memory issues worsen to the point of inability to perform job” and

advised against Billups operating a motor vehicle.52

On May 8, 2019, Shaner responded by email to Billups’ email of April 9, apologizing for her

delay.53 She explained that her questions in the email were to confirm what Billups was requesting

in his own terms and that his physician should complete the form.54 She stated that the

documentation she had received was unclear as to whether the physician was recommending an

accommodation in the form of liberal granting of leave or telework.55 She noted that she had not

been provided with the February 6, 2019, medical note referenced in the medical documentation she

received.56 Billups maintains that he did not receive this May 8 email because he had stopped

checking his work email.57 Billups never responded directly to the May 8 email.58 Billups’

supervisors did not forward Dr. Whitehead’s May 7, 2019, medical certification to Shaner.59 Shaner

48 ECF No. 25-12, at 2.

49 Id.

50 Id. at 3.

51 Id.

52 Id. at 4.

53 ECF No. 25-15, at 1.

54 Id.

55 Id.

56 Id.

57 ECF No. 29-1, at 6.

58 ECF No. 25-2, at 5. Billups takes the position that because his April 19, 2019, email requested that medical

documentation be forwarded to Shaner, he did provide follow up. The USDA points out—and Billups does not

contest—that the medical certification form sent by Davis and the form sent by Shaner were different. ECF No. 25-2,

at 4.

59 ECF No. 26-4, at 10.

never followed up with Billups after her May 8 email.60 Billups never corresponded with Shaner

again after his April 9, 2019, email to her.61

On September 24, 2019, Davis sent Billups another letter reporting that there was a critical

need for his position to be occupied by him functioning at the full performance level and onsite at

his duty location.62 It noted that he had been out of the office for over nine months and stated that

“[w]e are now at a critical point of your longtime absence from duty.”63 The letter requested that

Davis provide an updated medical certification.64

On or about October 5, 2019, Davis received Dr. Whitehead’s updated medical certification

form.65 Dr. Whitehead reported that Davis’ progress was good.66 Dr. Whitehead again advised

caution when driving given “worsening memory issues.”67 He advised that Billups be allowed to

“telecommute to work unless memory issues worsen to the point of inability to perform job” and

advised against operating a motor vehicle.68 He again certified that Billups was partially medically

incapacitated and that he could work eight-hour days, five days a week.69 He added that “[f]ollowing

completed evaluation by neurology, a final determination could be made in 60 days for return to full

time.”70

60 Id. at 13.

61 Billups Depo., ECF No. 25-19, at 12. In response to Request for Admission 45, Billups denied in part that he never

communicated or responded to Shaner’s request for additional information, however, he only does so on the basis that

he claims he did not receive Shaner’s May 8, 2019, email and that he asked Davis to forward documentation to Shaner.

ECF No. 25-16, at 9.

62 ECF No. 25-13, at 1.

63 Id. at 2.

64 Id.

65 ECF No. 25-2, at 3.

66 ECF No. 25-14, at 2.

67 Id.

68 Id. at 3.

69 ECF No. 26-6, at 9.

70 ECF No. 25-14, at 3.

Billups retired on December 31, 2019. 71 During the course of the interactions described

above, the USDA never communicated to Billups that he was being denied an accommodation.72

Nor did the USDA affirmatively communicate that the approval of his sick leave amounted to a

reasonable accommodation.73 Billups was paid sick leave during the entire period from December

2018 through December 31, 2019, except for the pay period in March 2019.74

Billups filed an EEO Complaint on February 24, 2020.75 He complained that management

had failed to provide him with a decision on his accommodation request, that he was forced to use

sick leave although he was medically approved to telework, and that he was prevented from

teleworking.76

On October 21, 2020, the Director of the Conflicts Complaints Division, Office of the

Assistant Secretary of Civil Rights, USDA, sent Billups a letter acknowledging receipt of testimony

in which he requested his EEO Complaint be amended and reporting that it was amending his EEO

Complaint to include a claim for constructive discharge.77 On October 23, 2020, Billups sent an

email stating that he was not alleging constructive discharge and that he did not agree to any proposed

amendment to his allegation of discrimination.78 He requested that the USDA proceed with

processing his complaint as originally filed.79 In his sworn testimony during the administrative

proceedings on October 11, 2021, he confirmed that he was no longer alleging a constructive

discharge claim for allegedly being forced to retire from his position.80

71 ECF No. 25-16, at 9.

72 ECF No. 25-2. Billups disputes this but presents no evidence to support his position.

73 ECF No. 26-4, at 2. The USDA disputes this but presents no evidence to support its position.

74 ECF No. 29-1, at 7.

75 ECF No. 30-3.

76 Id. at 1-2.

77 ECF No. 30-2.

78 ECF No. 30-4.

79 Id.

80 ECF No. 30-5, at 3.

On July 13, 2022, the administrative law judge denied Billups’ motion for summary

judgment and granted the agency’s motion for summary judgment.81 Billups filed an appeal with the

Equal Employment Opportunity Commission.82 The EEOC denied Billups’ request for

reconsideration on March 20, 2023.83

Billups filed the present lawsuit against Thomas Vilsack, Secretary of the USDA, on June

16, 2023, alleging employment discrimination in violation of Section 502 of the Rehabilitation Act

of 1983 as amended and the Americans with Disabilities Act as amended (“ADA”). He alleges that

the USDA violated these laws by failing to participate in good faith in the interactive process

and/or provide the requested or an alternate temporary reasonable accommodation. He alleges that

the discrimination resulted in his retirement and constructive discharge. He does not allege that he

was treated differently than any other USDA employees or refer in any way to a disparate impact

claim. He seeks to be returned to his previous position of record with the requested

accommodation, back pay, restoration of the leave he used during the period of alleged

discrimination, and non-pecuniary damages because he alleges that the USDA did not operate in

good faith and subjected him to an extended period of severe emotional stress.

The parties consented to proceed before the undersigned magistrate judge. The bench trial

is scheduled to begin on July 22, 2024. Both the USDA and Billups have filed motions for

summary judgment.

81 ECF No. 1, at 14; ECF No. 6, at 5.

82 ECF No. 1, at 14; ECF No. 6, at 5.

83 ECF No. 1, at 14; ECF No. 6, at 5.

Law and Analysis

1. Standard for Summary Judgment

Summary Judgment under Federal Rule of Civil Procedure 56 must be granted where

“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. Proc. 56. The movant has the initial burden of “showing the absence

of a genuine issue as to any material fact.” Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970).

The respondent must then “produce evidence or designate specific facts showing the existence of

a genuine issue for trial.” Engstrom v. First Nat. Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir.

1995). Evidence that is “merely colorable” or “is not significantly probative” is not sufficient to

defeat summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

“An issue is material if its resolution could affect the outcome of the action.” Daniels v.

City of Arlington, Tex., 246 F.3d 500, 502 (5th Cir. 2001). Thus, “there is no issue for trial unless

there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that

party.” Anderson, 477 U.S. at 249. Although this Court must “resolve factual controversies in

favor of the nonmoving party,” it must only do so “where there is an actual controversy, that is,

when both parties have submitted evidence of contradictory facts.” Antoine v. First Student, Inc.,

713 F.3d 824, 830 (5th Cir. 2013) (quoting Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540

(5th Cir. 2005). The Court must not, “in the absence of any proof, assume that the nonmoving

party could or would prove the necessary facts.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075

(5th Cir. 1994).

“Summary judgment is appropriate where critical evidence is so weak or tenuous on an

essential fact that it could not support a judgment in favor of the nonmovant, or where it is so

overwhelming that it mandates judgment in favor of the movant.” Armstrong v. City of Dallas,

997 F.2d 62, 67 (5th Cir. 1993). Summary judgment is also appropriate if the party opposing the

motion fails to establish an essential element of her case. See Celotex Corp. v. Catrett, 477 U.S.

317, 322-23 (1986).

Additionally, the Fifth Circuit Court of Appeals has recognized that in non-jury cases “it

makes little sense to forbid the judge from drawing inferences from the evidence submitted on

summary judgment when that same judge will act as the trier of fact, unless those inferences

involve issues of witness credibility or disputed material facts.” Lyles v. Medtronic Sofamor

Danek, USA, Inc., 871 F.3d 305, 311 (5th Cir. 2017) (quoting Matter of Placid Oil Co., 932 F.2d

394, 398 (5th Cir. 1991). “Therefore, ‘at the summary judgment stage a judge in a bench trial has

the limited discretion to decide that the same evidence, presented to him or her as trier of fact in a

plenary trial, could not possibly lead to a different result.’” Id. (quoting Placid Oil, 932 F.2d at

398).

2. Waiver of Claims and Failure to Exhaust

Billups purports to assert claims under the ADA and the Rehabilitation Act. But, because

the ADA does not allow claims against the federal government, only his Rehabilitation Act claims

may be viable. See Smith v. Potter, 400 F. App'x 806, 811 (5th Cir. 2010).

Pursuant to the Rehabilitation Act, “[n]o otherwise qualified individual with a disability in

the United States . . . shall, solely by reason of her or his disability, be excluded from the

participation in, be denied the benefits of, or be subjected to discrimination under any program or

activity receiving Federal financial assistance or under any program or activity conducted by any

Executive agency or by the United States Postal Service.” 29 U.S.C. § 794(a). The Rehabilitation

Act is interpreted using the same standards as the ADA. See Kemp v. Holder, 610 F.3d 231, 234

(5th Cir. 2010). Similarly, claims under the Rehabilitation Act are subject to the same

administrative exhaustion requirements as claims under Title VII of the Civil Rights Act of 1964.

Smith, 400 F. App'x at 811 (5th Cir. 2010). Thus, “as a precondition to seeking this judicial relief

. . . complaining employees must exhaust their administrative remedies by filing a charge of

discrimination with the EEO division of their agency. Pacheco v. Mineta, 448 F.3d 783, 788 (5th

Cir. 2006).

Exhaustion principles require that the scope of the “complaint is limited to the scope of the

EEOC investigation which can reasonably be expected to grow out of the charge of

discrimination.” Carey v. State of Louisiana, No. CIV.A. 00-2657, 2001 WL 1548962, at *5 (E.D.

La. Dec. 5, 2001) (quoting Thomas v. Texas Dep't of Criminal Justice, 220 F.3d 389, 395 (5th Cir.

2000)). A claim alleging one theory of discrimination must be dismissed where the EEOC charge

only alleged a different theory of discrimination. Thomas v. Texas Dep't of Crim. Just., 220 F.3d

389, 395 (5th Cir. 2000) (reversing the district court’s ruling allowing plaintiff to assert a race

discrimination claim when the EEOC charge had only alleged a gender discrimination claim). For

example, where an employee’s EEOC charge alleged discrimination on the basis of race and

national origin and failed to mention any discrete sexually discriminatory acts or any pattern of

discriminatory acts, a court has found that she failed to exhaust her administrative remedies as to

the hostile work environment, retaliation, and sex discrimination claims asserted in her lawsuit.

Cargo v. Kansas City S., No. CIV.A. 05-2010, 2009 WL 3010824, at *4 (W.D. La. Sept. 16, 2009).

Similarly, where a plaintiff’s EEOC charge asserted that she had been discriminated against

because of her sex but did not allege any facts to support a claim for sexual harassment or

retaliation for reporting sexual harassment, the court found she had failed to exhaust her

administrative remedies as to her claim of sexual harassment and retaliation for complaining of

such harassment. Ellzey v. Cath. Charities Archdiocese of New Orleans, 833 F. Supp. 2d 595, 602

(E.D. La. 2011).

a. Constructive Discharge

The USDA argues that Billups waived his constructive discharge claim because during the

administrative proceedings, he specifically requested that no constructive discharge claim be

included with his complaint and confirmed that he was not pursuing a constructive discharge claim

in his sworn testimony. Billups argues that the EEOC Amended Acceptance Letter dated October

21, 2020, accepted his constructive discharge claim. He argues that the cited testimony is

incomplete.

The Court finds that Billups waived his constructive discharge claim during the

administrative proceedings. His email and testimony withdrawing the constructive discharge claim

occurred after the October 21, 2020, Amended Acceptance Letter and clearly withdrew the

constructive discharge claim referred to therein. By withdrawing this claim from the administrative

proceedings, he has not exhausted his administrative remedies as to any constructive discharge

claim. Billups’ constructive discharge claim must be dismissed for failure to exhaust

administrative remedies.

b. Disparate Treatment

Billups’ lawsuit does not claim to assert a disparate treatment claim. He does not allege

that he was treated differently than other similarly situated workers outside of his protected class

in either his federal Complaint or his EEO Complaint. In support of his motion for summary

judgment, he now references two non-disabled co-workers—Stephen Deep and Jamar Gailes—

who were allowed to telework. But he did not allege any facts as to these individuals in his federal

Complaint or his EEO Complaint. Not only is any disability discrimination claim based on

disparate treatment outside the scope of the pleadings, but Billups has also failed to exhaust his

administrative remedies to as to any such claim. The EEO Complaint clearly focuses on his

allegation that the USDA failed to offer him a reasonable accommodation and failed to participate

in the interactive process. A disparate treatment claim could not reasonably be expected to grow

out of his EEO Complaint. Accordingly, Billups’ disparate treatment claim must be dismissed for

failure to exhaust administrative remedies.

c. Adverse Employment Action – AWOL Status

Billups also argues that when the USDA placed him on AWOL status and did not pay him

for a two-week pay period in March 2019, this amounted to an adverse employment action. He

argues that Davis should have allowed him 30 days to provide medical documentation before

charging him AWOL.84 He does not explain what type of claim this could be relevant to (e.g,

disparate impact discrimination, retaliation). In any event, as the USDA argues, Billups did not

raise any claim for disparate impact or retaliation arising out of having been placed on AWOL

status. His EEO Complaint contains no suggestion that he was raising any issue with this purported

adverse employment action. Accordingly, any claim arising out of being placed on AWOL status

must be dismissed for failure to exhaust administrative remedies.

84 Pursuant to the regulations:

An employee must provide administratively acceptable evidence or medical certification for a

request for sick leave no later than 15 calendar days after the date the agency requests such medical

certification. If it is not practicable under the particular circumstances to provide the requested

evidence or medical certification within 15 calendar days after the date requested by the agency

despite the employee's diligent, good faith efforts, the employee must provide the evidence or

medical certification within a reasonable period of time under the circumstances involved, but no

later than 30 calendar days after the date the agency requests such documentation.

5 C.F.R. § 630.405.

3. Rehabilitation Act – Failure to Provide a Reasonable Accommodation

Actionable 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.’” Feist v. Louisiana, Dep't of Just., Off. of the Atty. Gen., 730 F.3d 450, 452

(5th Cir. 2013) (quoting 42 U.S.C.A. § 12112 (b)(5)(A)). “To prevail on a failure-to-accommodate

claim, the plaintiff must show (1) he 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.” Thompson v. Microsoft Corp.,

2 F.4th 460, 467 (5th Cir. 2021) (quoting Moss v. Harris Cnty. Constable Precinct One, 851 F.3d

413, 417 (5th Cir. 2017)). To establish that he is a “qualified individual” plaintiff must show “1)

that he could perform the essential functions of the job in spite of his disability or 2) that a

reasonable accommodation of his disability would have enabled him to perform the essential

functions of the job.” Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1093 (5th Cir. 1996).

Reasonable accommodations may include “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.A. § 12111(9). “Although taking leave that is limited in duration may

be a reasonable accommodation to enable an employee to perform the essential functions of the

job upon return, taking leave without a specified date to return or . . . with the intent of never

returning is not a reasonable accommodation.” Moss, 851 F.3d at 419; see Dockery v. N. Shore

Med. Ctr., 909 F. Supp. 1550, 1560 (S.D. Fla. 1995) (“[T]he law clearly does not envision forcing

employers to grant even a year's unpaid leave of absence.”).

The USDA argues that Billups is not a “qualified individual” because the accommodation

of being provided with indefinite leave is not a reasonable accommodation. Additionally, the

USDA argues that given Dr. Whitehead’s medical certification that Billups had worsening memory

issues, Billups was unable to perform his job. It notes that Billups never provided follow up

documentation regarding his neurological appointments.

The USDA cites Shores v. United Continental Holdings, Inc., where the Southern District

of Texas granted summary judgment for the defendant. No. CV H-13-2745, 2016 WL 7742814, at

*11 (S.D. Tex. July 19, 2016), report and recommendation adopted, No. CV H-13-2745, 2016 WL

5394763 (S.D. Tex. Sept. 27, 2016). There, the plaintiff argued she was “a qualified individual

because she could have performed her job on some days if she were granted unlimited sick leave

for those days when she was unable to work.” Id. The court rejected this argument, finding that

such an “accommodation” was “the essence of indefinite, intermittent leave that courts have held

to be not available as a reasonable accommodation under the ADA.” Id. The USDA argues that

the accommodation proposed by Billups here—teleworking one to two days a week and using sick

leave the remainder of the week—similarly shows that he is not qualified to perform his job

functions. The USDA submits that his situational or unscheduled telework agreement required his

physical presence on a daily basis. The USDA cites Credeur v. Louisiana through Office of

Attorney General, where the Fifth Circuit held that “‘[a]n employee's unsupported testimony that

she could perform her job functions from home’ does not create a genuine dispute of fact to

preclude summary judgment.” 860 F.3d 785, 793 (5th Cir. 2017) (quoting E.E.O.C. v. Ford Motor

Co., 782 F.3d 753, 763–64 (6th Cir. 2015)). It argues that Billups has not shown that he is a

qualified individual.

Billups argues that he was a qualified individual. He argues that his job at USDA required

him to provide personnel related services to a customer base of several thousands and that the

primary communications were via telephone and email. He submits that Dr. Whitehead’s medical

documentation repeatedly stated that Billups could telework. He argues that his sick leave requests

were not requests for indefinite leave because he was willing and able to work as documented by

Dr. Whitehead. Billups argues that his request for telework was reasonable because he performed

telework for approximately nine months while deployed during an emergency situation. He

submits that the USDA has not articulated any issue with his work performance. He argues that

the reason he did not submit additional documentation regarding his neurological appointments is

because the USDA never requested it.

Dr. Whitehead’s note of February 2019 recommends that Billups be allowed to telework

one or two days a week. His note of March 19, 2019, reports that pending further neurological

evaluation, Billups should limit his work hours and not commute to the normal workplace. During

his deposition, Billups represented that it was Dr. Whitehead’s intention that he telecommute one

to two days a week and be granted sick leave the remainder of the week. The USDA and the Court

in Shores state that an indefinite accommodation of this type is not a reasonable accommodation.

Here, a decision on that issue need not be reached for the reasons that follow.

Billups seems to argue in both his motion for summary judgment and his opposition to the

USDA’s motion that, in fact, Dr. Whitehead later opined that Billups be allowed to temporarily

telework full time. The Court finds that Dr. Whitehead’s notes in May and October 2019 could be

read as making such a recommendation, but the notes also suggest that Billups would not be able

to perform his duties even with such an accommodation. In his May 7, 2019, report, Dr. Whitehead

stated that Billups was “partially medically incapacitated” and able to work eight-hour days, five

days a week.85 But he also noted “worsening memory issues,” causing Dr. Whitehead to “advise

telecommute if his memory allows for this until cleared by neurology.”86 Particularly considering

Dr. Whitehead’s previous recommendation in March 2019 that Billups be allowed to telework one

to two days a week and take leave the remaining days, and considering Dr. Whitehead’s caveat

that Billups’ memory might worsen to the point of inability to perform the job, the recommendation

is ambiguous and leaves questions as to whether Billups would have been able to perform the

essential functions of his job if he had been allowed to telework.

Further casting doubt on whether Billups was able to perform the essential functions of his

job and return to work full time, via telework or otherwise, are Dr. Whitehead’s additional

statements in his October 5, 2019, note. There, he reports that Billups has “most recently been

experiencing chronic worsening memory impairment,” “will need to be worked up more by

neurology as he is having worsening memory issues,” and should therefore use caution when

driving.87 He added that Billups “[m]ay need to avoid driving altogether, consider telecommute or

LOA [leave of absence] from work if memory skills worsen impacting daily life.” 88

At this point I would advise given potentially worsening memory issues with

current evaluation underway by neurology that Dennis be allowed to telecommute

to work unless memory issues worsen to the point of inability to perform job.

Would advise against him operating a motor vehicle until cleared by neurology.

Following completed evaluation by neurology, a final determination could be made

in 60 days for return to full time.89

85 ECF 25-12, at 3.

86 Id.

87 ECF 25-14, at 2.

88 Id.

89 Id. at 3.

The USDA does not address the possibility that Dr. Whitehead was recommending Billups

return to work full time on a telework basis. But the USDA does argue that Billups has not shown

he would be capable of performing his job in light of the reports of his memory issues and his

failure to submit his neurology evaluations.

On the evidence of record, it is unclear whether Billups was a qualified individual with a

disability because the medical documentation leaves numerous questions as to his ability to work.

Had the interactive process played out, the parties would have had to address the question of

Billups’ ability to perform his essential job functions while teleworking and whether part time or

full time teleworking was a reasonable accommodation. But the interactive process did not play

out. Even if Billups was found to be a qualified individual with a disability able to perform his job

with an available reasonable accommodation, the USDA cannot bear liability for failing to provide

a reasonable accommodation if Billups is responsible for the breakdown in the interactive process.

See Gordon v. Acosta Sales & Mktg., Inc., 622 F. App'x 426, 430 (5th Cir. 2015) (“[W]e need not

address whether [the employer] provided a reasonable accommodation, because we conclude that

[the employee’s] unilateral withdrawal from the interactive process is fatal to his claim.”).That

issue is addressed below.90

90 In the alternative, the USDA argues that by providing Billups with one year of paid sick leave, it provided him with

a more than reasonable accommodation. Billups counters that he had accrued and was entitled to the sick leave taken.

He cites EEOC policy advising that “[i]f an employer receives a request for leave for reasons related to a disability

and the leave falls within the employer’s existing leave policy, it should treat the employee requesting the leave the

same as an employee who requests leave for reasons unrelated to a disability.” U.S. Equal Employment Opportunity

Commission, Employer-Provided Leave and the Americans with Disabilities Act, EEOC-NVTA-2016-1 (May 9,

2016), https://www.eeoc.gov/laws/guidance/employer-provided-leave-and-americans-disabilities-act. That same

guidance provides that:

When an employee requests leave, or additional leave, for a medical condition, the employer must

treat the request as one for a reasonable accommodation under the ADA. However, if the request for

leave can be addressed by an employer's leave program, the FMLA (or a similar state or local law),

or the workers' compensation program, the employer may provide leave under those programs. But,

if the leave cannot be granted under any other program, then an employer should promptly engage

in an "interactive process" with the employee -- a process designed to enable the employer to

obtain relevant information to determine the feasibility of providing the leave as a reasonable

accommodation without causing an undue hardship.90

4. Rehabilitation Act – Failure to Participate in Good Faith in the Interactive Process

“Once an accommodation is requested, an employer must engage in the ‘interactive

process,’ or a flexible dialogue, with the employee with the goal of finding an appropriate

accommodation for the limitation.” Delaval v. PTech Drilling Tubulars, L.L.C., 824 F.3d 476, 481

(5th Cir. 2016). For example, in Thompson v. Microsoft Corp., the court found the employer

appropriately engaged in good faith where it worked with the employee “over several months,

explaining accommodations it deemed unreasonable, asking [him] to respond with alternate

accommodations, and offering to consult directly with [his] doctors.” 2 F.4th 460, 469 (5th Cir.

2021). Importantly, the process is bilateral: “[a]n employer that fails to engage in the interactive

process in good faith violates the ADA,” but the employer is not liable where the employee is

responsible for the breakdown in the interactive process. Delaval, 824 F.3d at 481; see Loulseged

v. Akzo Nobel Inc., 178 F.3d 731, 735 (5th Cir. 1999).

Thus,

courts should look for signs of failure to participate in good faith or failure by one

of the parties to help the other party determine what specific accommodations are

necessary. A party that obstructs or delays the interactive process is not acting in

good faith. A party that fails to communicate, by way of initiation or response, may

also be acting in bad faith. In essence, courts should attempt to isolate the cause of

the breakdown and then assign responsibility.

While the Court agrees that an employer will not typically be required to provide over a year’s paid leave to an

employee as a “reasonable” accommodation, see Moss, 851 F.3d at 419; Dockery, 909 F. Supp. at 1560, it may choose

to do so. Here, however, there is no evidence that the USDA considered Billups’ sick leave to be a reasonable

accommodation at the time leave was being granted. At no time did Billups request sick leave without telework as an

accommodation. Moreover, the USDA’s argument is contrary to its position that Billups abandoned the reasonable

accommodation process by failing to submit medical documentation directly to Shaner. The USDA cannot escape

liability for failing to provide a reasonable accommodation because it allowed Billups a year of sick leave pursuant to

its sick leave policy.

Hebert v. Ascension Par. Sch. Bd., 396 F. Supp. 3d 686, 705 (M.D. La. 2019) (quoting Taylor v.

Phoenixville Sch. Dist., 184 F.3d 296, 312 (3d Cir. 1999).

For example, in Loulseged, the employee quit after the employer offered accommodations

different from those she had previously been allowed. 178 F.3d at 733. After trial, the district court

granted the defendant’s motion for judgment as a matter of law and the Fifth Circuit affirmed,

finding that no reasonable jury could find the employer at fault for the breakdown in the interactive

process. Id. at 732. The court of appeals found that even though she would not have faced the

problematic job duties immediately, the employee quit without discussing or raising concerns with

the employer’s proposals and without waiting to see if further proposals or discussion developed.

Id. at 733, 740. The court rejected the employee’s attempt to characterize the employer’s actions

as unilateral, noting her “deafening silence” when the employer’s proposals were presented and

adding that “[o]ne cannot negotiate with a brick wall.” Id. at 737. Noting that “[a] party that fails

to communicate, by way of initiation or response, may . . . be acting in bad faith,” the court

concluded that the process broke down because the employee “stayed silent, and quit.” Id. at 738

(quoting Beck v. Univ. of Wisconsin Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996)); see

Griffin v. United Parcel Serv., Inc., 661 F.3d 216, 225 (5th Cir. 2011) (finding no reasonable juror

could conclude that the employer was unwilling to participate in the interactive process and

affirming summary judgment for the employer where the employee retired on his own accord

rather than providing additional information about his illness or requesting reconsideration when

the employer notified him that based on the information provided he was not entitled to the

requested accommodation); see also Equal Emp. Opportunity Comm'n v. Methodist Hosps. of

Dallas, 62 F.4th 938, 951 (5th Cir. 2023) (finding no reasonable jury could find that the employer

was unwilling to participate in the interactive process where the employee did not respond to the

employer’s two letters offering her unpaid time off as an accommodation); Gordon, 622 F. App'x

at 430 (finding no reasonable jury could find that the employee was not responsible for the

breakdown in the interactive process where the employee resigned the same day the employer

offered an accommodation rather than responding to the offer).

Additionally, where there is no evidence that a reasonable accommodation is feasible, an

employer’s failure to engage in the interactive process does not result in a finding of liability. 91

Silva v. City of Hidalgo, Tex., 575 F. App'x 419, 424 & n. 3 (5th Cir. 2014).

The dispute here comes down to whether Billups abandoned the interactive process. It is

uncontroverted that he failed to follow up directly with Shaner for almost nine months after his

April 9, 2019, email to her, through the time of his self-pronounced retirement, on December 31,

2019.92 The evidence shows that Billups knew at that time that Shaner was the individual with

whom he needed to communicate to request a reasonable accommodation.93 Even if he had not

realized that the medical forms sent by Davis and Shaner were different (a position he has not

taken), he had observed that Shaner had also sent a list of questions about the requested

accommodation because he asked Shaner about the questions. Yet he never responded. Nor did he

have his physician respond to these questions about the requested accommodation. The last

affirmative step Billups took towards pursuing a reasonable accommodation was requesting that

his supervisor forward unspecified medical documentation to her, and even that was in April 2019,

over one half year before he chose to take retirement.94 He made no attempt to determine through

91 “[W]hen an employer's unwillingness to engage in a good faith interactive process leads to a failure to reasonably

accommodate an employee, the employer violates the ADA.” Loulseged, 178 F.3d at 736. Where the accommodation

needed by the employee is not feasible for the employer to provide, the employer’s unwillingness to engage did not

lead to the failure to reasonably accommodate. Silva, 575 F. App'x at 424 & n. 3.

92 ECF No. 25-19, at 12.

93 Indeed, Billups insisted that his medical documentation and accommodation request be handled by Shaner because

“[i]t should only be handled and reviewed by individuals who are qualified to assist in interpreting it for the purpose

of making administrative decisions.” See Apr. 30, 2019, Email, ECF No. 25-10, at 1.

94 Id.

Shaner or Davis or anyone else whether Shaner had received the information she needed—even

when week after week, he was not authorized to telework.

Billups now relies on the text of the USDA policies instructing that reasonable

accommodation requests be made to the employee’s immediate supervisor. But once directed to

provide his request to Shaner by his supervisor, as occurred on March 6, 2019,95 Billups cannot be

excused for failing to follow the instructions provided directly to him. He insists that he did not

receive Shaner’s May 9 email posing reasonable questions about his requested accommodation,

but the document shows that it was sent to his email address at which Shaner had previously

reached him. He defends his failure to send any other documentation because he “wasn’t asked

for it.”96

Critical to who should bear the fault for the failure here is the fact that ultimately, Billups

retired. He claims this was because he was not granted the requested accommodation. But from

May 2019 on and culminating in his retirement, Billups clearly abandoned the interactive process.

In his own motion for summary judgment, he faults Davis repeatedly:

• “Davis failed to acknowledge receipt of Dr. Whiteheads May 7, 2019, and

October 5, 2019, medical documentation for reasonable accommodation

purposes.”97

• “Davis did not engage in the interactive process to determine if the telework

request was reasonable and did not offer any alternative accommodation.”98

95 ECF No. 25-8.

96 In his deposition, Billups was asked whether he had forwarded the neurological evaluation the doctor referenced in

his March letter. He did not “because they never requested it.” ECF No. 25-19, at 16. “If they wanted anything other

than that [the documentation identified in Shaner’s letter] they could have reached out to me as part of the interactive

process, and we could have had a discussion on what they specifically wanted or needed. They never did that.” Id. at

17. He saw a primary care doctor, a psychologist, and a second psychologist who did an evaluation, but provided no

records of this to the USDA. He testified, “again, no. I responded to the information that was requested from Davis

and Shaner in the document request that they provided to me. … I provided to them what they requested of me. If

they wanted more of me, they should have specifically requested that” Id. at 19. Not only does this gamesmanship

ignore the broad language of the requests he received from both Davis and Shaner, but of all people, Billups, a

supervisory human resource specialist, with decades of human resources experience, would and should know that he

should have provided any additional medical documentation he believed supported his request for sick leave and/or a

reasonable accommodation.

97 ECF No. 26-3, at 12.

98 Id.

• “Davis unwillingness to engage in any way in a good faith interactive process led

directly to Defendant’s failure to accommodate plaintiff’s known disability in

violation of the Rehabilitation Act.”99

• “[P]laintiff made five (5) separate request for the accommodation of telework.

For each of the five requests, plaintiff’s first level supervisor, did not engage

plaintiff in the interactive process ads prescribed and required . . . .” 100

But Billups knew to whom he needed to report and provide information—Shaner.101 He

knew to whom he could turn for a discussion or a decision—Shaner. He even wanted Shaner to

be in charge of the process as she was qualified.102

Given the sporadic, vague, often conflicting, and always tentative medical documentation

they received, the USDA was never provided with adequate information to determine whether

Billups was a qualified individual with a disability, whether a reasonable accommodation was

available, or what it would entail. And most of this information was not even provided by Billups

to the person in charge of handling his reasonable accommodation request—Shaner. Had Billups

been denied a reasonable accommodation or terminated under these facts, where his medical

situation was so unclear, the Court might be critical of the USDA for not first delving deeper to

see if a solution was available that would have enabled Billups to keep working. But that is not

what happened here. For many months, the USDA communicated, sent policies, options, forms,

follow up letters, requested updates, and posed specific questions regarding accommodations

sought. It let Billups know his absence was a hardship but nonetheless provided extensions for

him to get documentation and make follow up doctor appointments.103 It let him remain on paid

99 Id.

100 Id. at 15.

101 Medical Inquiry letter of Mar. 6, 2019, ECF No. 25-8; Billups’ Response to Request for Admission No. 7, ECF No.

25-16, at 2.

102 Billups’ Apr. 30, 2019, Email, ECF No. 25-10; Billups’ Response to Request for Admission 22, ECF No. 25-16, at

5.

103 Nor did the sparse and conflicting documentation received inspire any hope that return was actually feasible, with

or without a reasonable accommodation, considering its ominous references to Billups having “most recently been

experiencing chronic worsening memory impairment,” “will need to be worked up more by neurology as he is having

worsening memory issues,” should therefore use caution when driving, and “[m]ay need to avoid driving altogether,

sick leave for almost 13 months.104 And then he retired. Under these facts, the USDA was not

required to do more to accommodate him. Like the employees in Loulseged, Griffin, and Gordon,

Billups voluntarily terminated his employment rather than participating in the interactive process.

By ignoring USDA’s request for more information about appropriate and feasible

accommodations, he prevented the USDA from “determine[ing] what specific accommodations

[were] necessary.” Hebert, 396 F.Supp.4d at 705 (quoting Taylor, 184 F.3d at 312). His unilateral

termination of the process is fatal to his claim. See Gordon, 622 F. App'x at 430.

The Court finds that the evidence compels the conclusion that Billups abandoned the

interactive process. No reasonable juror could find otherwise. As a result, the USDA cannot be

liable for failing to provide him with a reasonable accommodation.

Conclusion

On the undisputed facts, the Court finds that Billups has waived and/or failed to exhaust

his administrative remedies as to his claims for constructive discharge, disparate treatment, and

any claim arising solely out of the two weeks Billups was charged AWOL and not paid.

Accordingly, these claims must be dismissed. Although Billups may or may not have been a

qualified individual, who may or may not have had a reasonable accommodation available to him,

because he abandoned the interactive process, he cannot establish a claim for failure to

accommodate or failure to engage in the interactive process. Accordingly, these claims must also

be dismissed. Billups’ motion for summary judgment is DENIED and the USDA’s motion for

summary judgment is GRANTED.

consider telecommute or LOA from work if memory skills worsen impacting daily life.” Oct. 5, 2019, Note of Dr.

Whitehead, ECF No. 25-14. These, of course, Billups sent to Davis, not Shaner.

104 ECF No. 29-1, at 7.

New Orleans, Louisiana, this 2nd day of July, 2024.

, Ow

Janis van Meerveld

United States Magistrate Judge

27