# Penneti v. L&T Technology Services, LTD

> District Court, N.D. Texas · July 20, 2023

URL: https://www.frixlaw.com/law-library/cases/10670999

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** July 20, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10670999

## How later opinions describe it (automated extraction)

- holding that “disciplinary filings, supervisor’s reprimands, and ... poor performance by the employee” do not constitute adverse employment actions
- discussing pretext in the retaliation context

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

RAJESH PENNETI, §
§
Plaintiff, §
§
v. § Civil Action No. 3:21-CV-00525-E
§
L&T TECHNOLOGY SERVICES LTD and §
SONIM TECHNOLOGIES, INC., §
§
Defendants. §
§

MEMORANDUM OPINION AND ORDER
Before the Court is Defendant L&T Technology Services Ltd. (LTTS)’s motion for
summary judgment (LTTS’s Motion), which seeks to dismiss all of Plaintiff Rajesh Penneti’s
claims against it. Penneti has responded to the summary judgment, and LTTS has replied. For the
reasons enumerated below, the Court GRANTS LTTS’s Motion
I. BACKGROUND
A. Penneti’s Work at LTTS and FMLA Notice
LTTS is a global company headquartered in India that provides IT management and
consulting services; LTTS has 1,600 employees in North America and 16,000 employees
worldwide. (ECF No. 56 at 17-18). Since 2014, Penneti worked at LTTS. (ECF No. 56 at 4). In
2017, Penneti was treated for depression. (ECF No. 56 at 4). In 2019, Penneti sought treatment
from a psychiatrist who diagnosed him with major depressive disorder and general anxiety
disorder. (ECF No. 56 at 4). Beginning in September 2019, Penneti worked on a project for
Defendant Sonim Technologies, Inc. (Sonim), as a Senior Field Test Engineer. (ECF No. 56 at 4).
In November 2019, Penneti’s physician “recommended [he] take leave from work.” (ECF
No. 56 at 5). On November 26, 2019, Penneti emailed LTTS: “TI like to take leave under FMLA.
Please let me know the procedure for this as soon as possible.” (ECF No. 56 at 30).' On December
2, 2019, LTTS human resources employee Merica Quan responded “[k]indly confirm the reason
for your FMLA request and the dates you would be going on leave” and directed Penneti to the
employee handbook. (ECF No. 56 at 29). On December 7, 2019, Penneti emailed LTTS:
This is for my mental health — depression and related conditions like exhaustion,
loss of appetite which are starting to effect my work.
Need to discuss with my psychiatrist what are the exact DSM codes for my
condition, what is the best way to take leaves [sic] to recover from my condition
( [sic] intermittent or extended leave) and how long would it be required.
I have an upcoming appointment on Dec 4th and in case you need my doctor to fill
up any forms, please send them to me before Dec 4".
(ECF No. 56 at 28). On December 11, 2019, Penneti emailed Quan, Srishti Tewari (another LTTS
human resources employee), and others at LTTS a completed FMLA form and “[r]equested leave:
intermittent for 3 months, 2 days of leave every week to take 4 consecutive days of rest.” (ECF
No. 56 at 39). Under the section labeled “Estimate the part-time or reduced work schedule the
employee needs, if any,” Penneti wrote:
Estimate the part-time or reduced work schedule the employee needs, if any: QO ' ‘ 0
hour(s) per day; S days per week from _\Z b| |G through 2 | \G | \y
7. Will the conditiorcause episodic hres nad Beat Ob Ente BEIGE ALN, ihe sco! Ba ~
functions? “NO. Yes AzcoBoe avy “4 .

(ECF No. 56 at 46). Penneti requested for intermittent leave for a three month period—to work
three days a week with two consecutive days off from work. (ECF No. 56 at 39, 46).

' “FMLA” refers to the Family Medical Leave Act.

MEMORANDUM OPINION AND ORDER Page 2 of 28

On December 11, 2019, LTTS management emailed Pradip Bonde, who was Penneti’s
supervisor at LTTS, “[t]his is not going to be acceptable by Sonim. Please find a way out.” (ECF
No. 56 at 90). On December 12, 2019, Penneti’s supervisor from LTTS on the Sonim project
Amarjit Prasad emailed Tewari:

We got to know from Rajesh Penneti that he has applied for FMLA.
Please let us know if he is eligible and 2 days a week leave is even possible coz
[sic] it will badly affect our delivery.
Can you try to talk him out for long leave instead of intermittent leaves under
FMLA. [sic]

(ECF No. 56 at 91). In his declaration, Penneti testifies:
In December 2019, I discussed my leave with Amarjit Prasad. Prasad asked me to
consider taking three to four weeks leave instead of the two days per week that my
physician recommended.

(ECF No. 56 at 6).
On December 16, 2019, Tewari requested a doctor’s note from Penneti, which indicated
Penneti’s work restrictions and the start and end date of the restrictions. (ECF No. 56 at 54). On
December 25, 2019, Penneti submitted the doctor’s note, which indicated restrictions from
December 16, 2019 to March 6, 2020. (ECF No. 56 at 51, 58). On January 3, 2020, Bonde emailed
Tewari “[i]t will be difficult for [Penneti] to work in this manner. Client will not accept it. Can we
suggest him to go on leave for 2 to 3 weeks. [sic].” (ECF No. 56 at 92). On January 10, 2020,
Penneti informed LTTS that he would take leave from January 13 to 14 of 2020; that same day,
LTTS approved Penneti’s intermittent leave request. (ECF No. 56 at 48-49). LTTS placed Penneti
on intermittent leave from January 13, 2020 to March 16, 2020. (ECF No. 94 at 133). Thereafter,
Penneti requested no other accommodation from LTTS. (ECF No. 44 at 37).
B. Penneti’s Work Separation from the Sonim Project
On January 13, 2020, Bonde emailed Sonim’s Test Manager Rajesekar Dhanasekaran the
following:
Rajesh P who is working on SONIM assignment in Dallas is facing some medical
issues, Doctor has suggested him to take some rest hence he has applied FMLA.
Doctor has suggested him to take 2 days of leave every week for sometime. He will
be taking Monday and Tuesday leave every week from today. Hope this if fine with
you [sic]

(ECF No. 56 at 72). That same day, Dhanasekaran responded:
We didn’t get any information prior to this email and We are NOT okay with below
proposal. We would request the engineer to continue his support till we find a
replacement with KT.
Also we are unhappy with things happening at FT which is affecting our “QA
deliverables”.

(ECF No. 56 at 72). Bonde proposed a plan to Sonim regarding Penneti’s leave involving other
workers “to minimize the impact on project deliverable.” (ECF No. 44 at 97). In Bonde’s
declaration, he testified that that:
Sonim advised me that the proposed schedule was not workable for the Sonim
project which had critical milestones through March 2020. Sonim explained that
each engineer on the project, including Plaintiff, was allocated new tasks on a daily
basis and, as such, a three day a week schedule would lead to a 5 day waiting period
between assignment and response for certain projects, thereby drastically impacting
project delivery timing.

(ECF No. 44 at 94). On January 14, 2020, Dhanasekaran at Sonim removed Penneti from the
Sonim project, effective January 17, 2020. (ECF No. 56 at 71). Furthermore, on April 27, 2020,
Sonim “changed [its] internal [field test] strategy due to cost factor” and “close[d] all the [field
test] contracts at USA present on-going.” (ECF No. 44 at 133).
C. Penneti’s Work Separation from LTTS
After the assignment at Sonim ended, LTTS placed Penneti on a project named OMADM
until January 30, 2020. (ECF No. 56 at 8). Then, LTTS placed Penneti on an internal training
project in March 2020 wherein Penneti trained four employees on mobile field testing. (ECF No.
44 at 49; ECF No. 56 at 8). At all times (i) while Penneti was on his FMLA leave and (ii) during
this internal training project assignment, Penneti received the same salary and was eligible for the
same benefits he received while he had worked on the Sonim project. (ECF No. 44 at 49). On April

29, 2020, LTTS noticed Penneti that this internal training project would end on May 5, 2020. (ECF
No. 44 at 90). The notice further explained:
[Y]our last date of employment with L&T Technology Services will be processed
as of May 13, 2020. During this notice period of 2 weeks we will be looking for
other project/assignments internally with LTTS and if no suitable project is found,
your last date of employment with L&T Technology Services will be processed as
of May 13, 2020 and you will be removed from company payroll after this date.

(ECF No. 44 at 90). After this notice, LTTS attempted locate further assignment for Penneti. (ECF
No. 44 at 94-95). LTTS was unable to locate a further assignment for Penneti, and LTTS
terminated his employment on May 13, 2020. (ECF No. 44 at 95).
D. Procedural History
On March 8, 2021, Penneti filed his complaint, which asserts claims against LTTS for
(i) disability discrimination under the Americans with Disabilities Act (ADA); (ii) disability
discrimination under the Texas Commission on Human Rights Act (TCHRA); (iii) failure to
accommodate disability under the ADA; (iv) failure to accommodate disability under the TCHRA;
(v) interference with exercise of rights under the FMLA; and (vi) discrimination and retaliation
under the FMLA. LTTS has moved for summary judgment on each of these claims. Having been
fully briefed and for the reasons enumerated hereunder, the Court GRANTS LTTS’s Motion,
hereunder.
II. SUMMARY JUDGMENT LEGAL STANDARD
Summary judgment is appropriate when the pleadings and evidence on file show “there is
no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).

A genuine dispute of material fact exists “if the evidence is such that a reasonable jury could return
a verdict for the non-moving party.” Anderson, 477 U.S. at 248. A court must view all evidence
and draw all reasonable inferences in the light most favorable to a party opposing a summary
judgment motion. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). A court
“may not make credibility determinations or weigh the evidence” in ruling on the motion. Reeves,
530 U.S. at 150; Anderson, 477 U.S. at 254-55. Moreover, the evidence the non-movant provides
must raise “more than ... some metaphysical doubt as to the material facts.” Matsushita Elec. Indus.
Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). The evidence must be such that a jury could
reasonably find in the non-movant’s favor. Anderson, 477 U.S. at 248. If the non-movant is unable
to make such a showing, the court must grant summary judgment. Little v. Liquid Air Corp., 37

F.3d 1069, 1075 (5th Cir. 1994).
The moving party bears the initial burden of showing the court there is no genuine issue
for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A party with the burden of proof on
an issue “must establish beyond peradventure all of the essential elements of the claim or defense
to warrant judgment in his favor.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)
(emphasis omitted). When, as here, a nonmovant bears the burden of proof, the movant may
demonstrate it is entitled to summary judgment either by (1) submitting evidence that negates the
existence of an essential element of the nonmovant’s claim or affirmative defense, or (2) arguing
there is no evidence to support an essential element of the nonmovant’s claim or affirmative
defense. Celotex, 477 U.S. at 322–25 (emphasis added). There is “no genuine issue as to any
material fact [if] a complete failure of proof concerning an essential element of the nonmoving
party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323.
Once the movant has made this showing, the burden shifts to the nonmovant to establish

there is a genuine issue of material fact so that a reasonable jury might return a verdict in its favor.
Celotex, 477 U.S. at 324. “[C]onclusory allegations, speculation, and unsubstantiated assertions”
will not satisfy the nonmovant’s burden. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415,
1429 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1). A
court “resolve[s] factual controversies in favor of a nonmoving party . . . only when an actual
controversy exists, that is, when both parties have submitted evidence of contradictory facts.”
Olabisiomotosho v. City of Houston, 185 F.3d 521, 525 (5th Cir. 1999).
“A party opposing such a summary judgment motion may not rest upon mere allegations
contained in the pleadings, but must set forth and support by summary judgment evidence specific
facts showing the existence of a genuine issue for trial.” Ragas v. Tennessee Gas Pipeline Co., 136

F.3d 455, 458 (5th Cir. 1998) (citing Anderson, 477 U.S. at 255–57). The Fifth Circuit has
explained:
The party opposing summary judgment is required to identify specific evidence in
the record and to articulate the precise manner in which that evidence supports his
or her claim. . . . “Rule 56 does not impose upon the district court a duty to sift
through the record in search of evidence to support a party’s opposition to summary
judgment.” Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915–16 & n. 7 (5th Cir.),
cert. denied, 506 U.S. 832, 113 S.Ct. 98, 121 L.Ed.2d 59 (1992).

Ragas, 136 F.3d at 458. Regarding assertions of fact, Federal Rule of Civil Procedure 56 states:
[i]f a party fails . . . to properly address another party’s assertion of fact as required
by Rule 56(c), the court may . . . (2) consider the fact undisputed for purposes of
the motion [and] (3) grant summary judgment if the motion and supporting
materials—including the facts considered undisputed—show that the movant is
entitled to it[.]
Fed. R. Civ. P. 56(e)(2)-(3).
III. ANALYTICAL FRAMEWORKS

Because several of Penneti’s claims allege discrimination or retaliation, the Court provides
the following McDonnell Douglas burden-shifting framework analyses, which are common to
employment discrimination and retaliation claims. See McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973); Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996) (“To succeed
on a claim of intentional discrimination under Title VII, Section 1983, or Section 1981, a plaintiff
must first prove a prima facie case of discrimination.”) (collecting cases); E.E.O.C. v. LHC Grp.,
Inc., 773 F.3d 688, 694 (5th Cir. 2014) (addressing ADA discrimination claim under burden-
shifting framework); Campos v. Steves & Sons, Inc., 10 F.4th 515, 520 (5th Cir. 2021) (“Because
the Texas statute parallels the ADA, we treat such claims similarly.”);2 Mauder v. Metro. Transit
Auth. of Harris Cnty., Tex., 446 F.3d 574, 583 (5th Cir. 2006) (addressing FMLA retaliation under
burden-shifting framework)
A. Employment Discrimination

“A plaintiff can prove a claim of intentional discrimination by either direct or
circumstantial evidence.” Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000);
see, e.g., Gaalla v. Brown, 460 F. App’x 469, 479 (5th Cir. 2012) (addressing racial
discrimination). Regarding direct evidence, the Fifth Circuit has explained:

2 The Texas Supreme Court has explained that claims asserted under the TCHRA should be analyzed in the
same manner as its federal analogues. See Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629,
633–34 (Tex. 2012) (citations omitted) (“Because one of the purposed of the TCHRA is to ‘provide for the
execution of the policies of Title VII of the Civil Rights Act of 1964,’ we have consistently held that those
analogous federal statutes and the cases interpreting them guide our reading of the TCHRA.”); Wal-Mart
Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003) (noting the McDonnell Douglas burden shifting
analysis applies to TCHRA disability discrimination cases); Pegram v. Honeywell, Inc., 361 F.3d 272, 285
(5th Cir. 2004) (discussing disability discrimination under the TCHRA as parallel to the ADA).
Direct evidence [of discriminatory intent] is evidence which, if believed, proves the
fact without inference or presumption. . . . It includes any statement or document
which shows on its face that an improper criterion served as a basis—not
necessarily the sole basis, but a basis—for the adverse employment action.

Gaalla, 460 F. App’x at 479 (internal quotations omitted). “Absent direct evidence of
discriminatory intent, as is typically the case, proof via circumstantial evidence is assembled using
the framework set forth in the seminal case of McDonnell Douglas Corp. v. Green, 411 U.S. 792,
93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).” Russell, 235 F.3d at 222. Circumstantial evidence includes
statements that merely suggest discriminatory motive or require the fact finder to draw an inference
as to whether the comment is probative of an employer’s discriminatory animus. Sandstad v. CB
Richard Ellis, Inc., 309 F.3d 893, 896-98 (5th Cir. 2002), cert. denied, 539 U.S. 926 (2003). The
Fifth Circuit has explained the three-step McDonnell Douglas framework as follows:
Under that framework, [a plaintiff] must make out a prima facie case of
discrimination. Watkins v. Tregre, 997 F.3d 275, 281 (5th Cir. 2021). If she
succeeds, [a defending employer] must respond with a “legitimate,
nondiscriminatory reason” for terminating [the plaintiff]. Id. at 282. Then the
burden shifts back to [the plaintiff], who must counter with substantial evidence
that [the defending employer’s] proffered reason is pretextual. Id.

Owens v. Circassia Pharms., Inc., 33 F.4th 814, 825 (5th Cir. 2022). The second step of the
McDonnell Douglas framework requires an employer’s production of a legitimate,
nondiscriminatory reason for terminating a plaintiff, but this second step “can involve no
credibility assessment.” Reeves, 530 U.S. 133, 142 (citing St. Mary’s Honor Center v. Hicks, 509
U.S. 502, 509 (1993)).3 Regarding the third step of the McDonnell Douglas framework, “the

3 Although intermediate evidentiary burdens shift back and forth under this framework, “[t]he ultimate
burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff
remains at all times with the plaintiff.” Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000)
(quoting Texas Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981)).
plaintiff can rely on evidence that the employer’s reasons were a pretext for unlawful
discrimination.” Russell, 235 F.3d at 222 (citing McDonnell Douglas, 411 U.S. at 804).
B. Employment Retaliation
“A plaintiff may prove a retaliation claim through direct or circumstantial evidence.” Jones

v. Overnite Transp. Co., 212 F. App’x 268, 275 (5th Cir. 2006). “Without direct evidence, the
plaintiff must establish his cause of action using circumstantial evidence and the McDonnell
Douglas burden-shifting framework,” discussed above. Jones, 212 F. App’x at 275. “If the plaintiff
establishes a prima facie case, then the defendant must show a non-retaliatory, legitimate reason
for the adverse action.” Again, this second step of the McDonnell Douglas framework requires an
employer to produce evidence of a non-retaliatory, legitimate reason for the adverse action—but
requires no burden of persuasion. See Jones, 212 F. App’x at 275; Gee v. Principi, 289 F.3d 342,
348 (5th Cir. 2002) (“We agree that [t]he ultimate burden of persuading the trier of fact that the
defendant [retaliated] against the plaintiff remains at all times with the plaintiff.”) (internal
quotation omitted). “Once the defendant meets this burden, the plaintiff must in turn offer evidence

to create a genuine issue of material fact that the defendant’s reason is not true, but is instead a
pretext for discrimination.” Jones, 212 F. App’x at 275; see, e.g., Gee, 289 F.3d at 345 (discussing
the same).
IV. PENNETI’S DISABILITY DISCRIMINATION CLAIMS (ADA AND TCHRA)
“The ADA prohibits an employer from discriminating against a ‘qualified individual with
a disability on the basis of that disability.’” LHC Grp., Inc., 773 F.3d at 694 (citing 42 U.S.C. §
12112(a)). Furthermore, “Texas law prohibits employers from discriminating against their
employees based on disability.” Campos, 10 F.4th at 520 (citing Tex. Lab. Code § 21.051(1)). As
pleaded, the ADA discrimination analysis applies equally to Penneti’s TCHRA discrimination
claim, so the Court analyzes each of these claims together. See Campos, 10 F.4th at 520; see, e.g.,
Clark v. Champion Nat’l Sec., Inc., 952 F.3d 570, 578 n.16 (5th Cir. 2020) (collecting cases).
As discussed above “[a] plaintiff can prove discrimination through direct or circumstantial
evidence.” Campos, 10 F.4th at 520. “When circumstantial evidence is the basis for the claim, the

McDonnell Douglas burden-shifting framework applies.” Campos, 10 F.4th at 520. Under the first
step of the McDonnell Douglas framework, the Fifth Circuit has explained:
the employee has the burden to prove the prima facie elements: “(1) that he has a
disability; (2) that he was qualified for the job; [and] (3) that he was subject to an
adverse employment decision on account of his disability.” Moss v. Harris Cnty.
Constable Precinct One, 851 F.3d 413, 417 (5th Cir. 2017) (alteration in original).

Campos, 10 F.4th at 521 (emphasis added in bold). “Adverse employment decisions are ultimate
employment decisions such as hiring, granting leave, discharging, promoting, ... compensating, or
demoting.” Thompson v. Microsoft Corp., 2 F.4th 460, 470 (5th Cir. 2021) (internal quotation
omitted).4
LTTS contends that Penneti’s disability discrimination claims fail as he cannot meet his
burden under the McDonnell Douglas burden-shifting standard because there is no evidence of the
third element—that Penneti was subject to an adverse employment decision on account of his
disability. Penneti responds with four alleged adverse employment decisions as based on his
disability—(i) removal from the Sonim project; (ii) transfer to an internal training project; (iii) a
negative performance review; and (iv) his ultimate termination from LTTS. Penneti first responds
that direct evidence exists of disability discrimination in relation to each of these four alleged
adverse employment actions, but Penneti fails to cite any evidence in support. (ECF No. 55 at 22-

4 Courts use the terms “adverse employment action” and “adverse employment decision”
interchangeably. See, e.g., Thompson v. Microsoft Corp., 2 F.4th 460, 470 (5th Cir. 2021); Pegram, 361
F.3d at 282 (5th Cir. 2004) (“an adverse employment action consists of ultimate employment decisions
such as hiring, granting leave, discharging, promoting, and compensating”) (internal quotation omitted).
23). The Court has further found no direct evidence of disability discrimination in the record. The
Court concludes there is no direct evidence of disability discrimination in the record. Thus, the
Court next determines whether circumstantial evidence exists of LTTS’s adverse employment
decision on account of Penneti’s disability. See Campos, 10 F.4th at 521.

A. Penneti’s Removal from the Sonim Project and Transfer to Internal Training
Project

The Parties dispute whether Penneti’s removal from the Sonim project and transfer to an
internal training project constituted adverse employment actions. Penneti refers the Court to no
evidence as to how or why his removal from the Sonim project constituted an adverse employment
action, and the Court has found none. Instead, the record shows LTTS granted Penneti’s request
to work three consecutive days a week and be off from work two consecutive days a week; Sonim’s
corporate representative testified:
[Question]: Is there any reason why Mr. Penneti would not be able to work three
days per week on the Sonim project?
[Answer]: Sonim required resources working five days a week.

(ECF No. 56 at 86).5 Nonetheless, after removal from the Sonim project, the record shows Penneti
continued to receive the same compensation and benefits as when he worked at Sonim. Assuming
arguendo that Penneti’s removal from the Sonim project constituted a reassignment to a vacant

5 Sonim’s corporate representative next speculates without personal knowledge whether a working
combination of Penneti and other LTTS employees would have permitted Penneti to continue working three
days a week on the Sonim project:
[Question]: So if LTTS had proposed Mr. Penneti three days and another resources two
days, Sonim would have been able to accommodate that request?
[Answer]: Again, I was not the one who was making that decision, so - - I mean, that’s a
hypothetical statement[]
(ECF No. 56 at 86). Such evidence is not competent summary judgment evidence. See TIG Ins. Co. v.
Sedgwick James of Washington, 276 F.3d 754, 759 (5th Cir. 2002).
position at LTTS, the record shows LTTS granted Penneti’s requested reasonable accommodation.
“Under the ADA, reassignment to a vacant position can be a reasonable accommodation.”
Gonzales v. City of New Braunfels, Tex., 176 F.3d 834, 838 (5th Cir. 1999).
Next, in addressing his reassignment to an internal training project, Penneti refers the Court

to the following from Alvarado v. Texas Rangers:
[t]o be equivalent to a demotion, a transfer need not result in a decrease in pay, title,
or grade; it can be a demotion if the new position proves objectively worse—such
as being less prestigious or less interesting or providing less room for advancement.

492 F.3d 605, 613 (5th Cir. 2007) (internal quotation omitted, emphasis added); (see ECF No. 55
at 22). But, Penneti directs the Court to no evidence that the internal training project constituted
an “objectively worse” position—that this internal training project position was less prestigious,
less interesting, or provided less room for advancement. And, the Court has found no such
corresponding evidence.
Penneti next argues:
LTTS does not dispute that it is vital for an employee/resource to be allocated to a
revenue-generating project. LTTS has even confirmed that employees who are not
on a revenue-generating project for a period of time will be terminated. Thus, by
its own admission, removing Penneti from the Sonim project and placing him on
an internal project is an adverse employment action Furthermore, it was LTTS’
discriminatory actions of removing Penneti from the Sonim project that led to his
termination.

(ECF No. 55 at 22-23) (emphasis added). Again, Penneti cites no corresponding evidence in the
record. And the Court has found no such supporting evidence in the record.6 Assuming arguendo
such evidence that an assignment to a non-”revenue-generating project” was less prestigious or

6 Indeed, there is no evidence in the record that “LTTS . . . confirmed employees who are not on a revenue-
generating project for a period of time will be terminated”; to the contrary, the record shows Penneti agreed
he was terminated because he was “unassigned”—”not placed in a subsequent assignment” for “a particular
period of time.” (ECF No. 44 at 38-39).
desirable, the record shows—and it is undisputed—that Penneti kept the same salary and benefits
as when he worked with Sonim. Otherwise, there is no evidence in the record of adverse changes
in Penneti’s work duties, compensation, or benefits. The Fifth Circuit explained:
in cases where the evidence produces no objective showing of a loss in
compensation, duties, or benefits, but rather solely establishes that a plaintiff was
transferred from a prestigious and desirable position to another position, that
evidence is insufficient to establish an adverse employment action. See Serna v.
City of San Antonio, 244 F.3d 479, 485 (5th Cir. 2001).

Pegram v. Honeywell, Inc., 361 F.3d 272, 283 (5th Cir. 2004). Thus, the record does not support
Penneti’s argument that assignment to an internal project constituted an adverse employment
action.
B. Penneti’s Negative Performance Review
Penneti next directs the Court to evidence of a negative performance review as an adverse
employment action. However, the Fifth Circuit has explained that poor or negative performance
reviews do not typically constitute an adverse employment action:
Even if the [employee assistance plan] is characterized as a poor performance
review, Welsh has failed to allege an adverse employment action. Mattern v.
Eastman Kodak Co., 104 F.3d 702, 708 (5th Cir. 1997) (holding that “disciplinary
filings, supervisor’s reprimands, and ... poor performance by the employee” do not
constitute adverse employment actions), abrogated on other grounds by Burlington
N. & Santa Fe Ry. Co., 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345; Douglas v.
DynMcdermott Petroleum Operations, Co., 144 F.3d 364, 373 n.11 (5th Cir. 1998)
(low performance ratings not considered adverse employment actions).

Welsh v. Fort Bend Indep. Sch. Dist., 941 F.3d 818, 824–25 (5th Cir. 2019). Although Penneti
avers the performance review occurred because of his medical leave, Penneti directs the Court to
no supporting evidence, and the Court has found none.7 To contrary, the record of the performance

7 Penneti also argues that “he received a poor performance review making him ineligible for a promotion
because of his disability,” but there is neither argument nor evidence that Penneti was—at any time—
considered for or offered a promotion. (ECF No. 55 at 22) (emphasis in original). Penneti’s pleadings do
not discuss or allege a failure to promote. (See ECF No. 1). The Court notes generally that in the TCHRA
context, “a decision made by an employer that only limits an employee’s opportunities for promotion or
review contains no discussion whatsoever regarding any health conditions or medical leave. (ECF
No. 56 at 104-13).
Here, the record is devoid of evidence that Penneti’s (i) removal from the Sonim project;
(ii) transfer to an internal training project; or (iii) negative performance review constituted adverse

employment decisions. Thus, the Court must conclude that these three employment actions did not
constitute adverse employment actions.8
C. Penneti’s Termination from LTTS
It is undisputed that Penneti’s termination from LTTS constituted an adverse employment
action. See 42 U.S.C. § 12112(a) (“No covered entity shall discriminate against a qualified
individual on the basis of disability in regard to . . . discharge of employees[]”). LTTS argues
there is no evidence that Penneti’s termination occurred “on account of his disability.” In response,
Penneti appears to rely on the same general, unsupported evidentiary assertions discussed above
regarding (i) his removal from the Sonim project; (ii) his transfer to an internal training project;
and (iii) his negative performance review. However, no evidence in the record of these

circumstances show any relation to Penneti’s disability. That is, the record does not show these
circumstances occurred “on account of” Penneti’s depression, mental health, or related conditions
discussed in the record (exhaustion and loss of appetite). (See, e.g., ECF No. 56 at 28). Instead,
the record shows LTTS attempted to secure further work for Penneti, but LTTS was not able to

lateral transfer does not qualify as an adverse employment action under Title VII.” Banks v. East Baton
Rouge Parish School Board, 320 F.3d 570, 575 (5th Cir.2003), citing Burger v. Cent. Apartment Mgmt.,
Inc., 168 F.3d 875, 878-80 (5th Cir. 1999) (explaining that an employer’s refusal of an employee’s request
for a “purely lateral transfer” does not qualify as an adverse employment action under Title VII).
8 Penneti generally avers throughout his briefing that he was “removed from the OMADM project because
of his disability.” (See e.g., ECF No. 55 at 24). However, at no point does Penneti refer the Court to any
corresponding evidence, and the Court has found no evidence in the record that shows any discriminatory
or retaliatory animus in regards to Penneti’s removal from the OMADM project.
secure further work for Penneti before the noticed termination date of May 13, 2020. (See ECF
No. 44 at 101-31).
Thus, the record is devoid of evidence that Penneti’s termination at LTTS occurred on
account of his disability. Accordingly, the Court must conclude Penneti has not “prove[d] a prima

facie case of discrimination” under the ADA or TCHRA for disability discrimination. Owens, 33
F.4th at 825; see Campos, 10 F.4th at 521. The Court GRANTS LTTS’s motion for summary
judgment as to Penneti’s corresponding claims of disability discrimination under the ADA and
TCHRA.
V. PENNETI’S FAILURE TO ACCOMMODATE CLAIMS (ADA AND TCHRA)
The ADA “requires an employer to make ‘reasonable accommodations to the known
physical or mental limitations of an otherwise qualified individual with a disability[.]’” Delaval v.
PTech Drilling Tubulars, L.L.C., 824 F.3d 476, 481 (5th Cir. 2016) (quoting 42 U.S.C.
§ 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.” Feist v. Louisiana, Dep’t of Just., Off.
of the Atty. Gen., 730 F.3d 450, 452 (5th Cir. 2013) (emphasis added in bold). The Fifth Circuit
has further explained:
“An employee who needs an accommodation ... has the responsibility of informing
[his] employer.” EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 621 (5th Cir.
2009). Special words, like “reasonable accommodation,” need not be uttered, but
the employee “must explain that the [proposed] adjustment in working conditions .
. . is for a medical condition-related reason. . . .” Id. 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. Id. An employer that fails to engage in the interactive process
in good faith violates the ADA. Griffin v. United Parcel Serv., Inc., 661 F.3d 216,
224 (5th Cir. 2011). Where the breakdown “is traceable to the employee,” though,
there is no violation. Id.

Delaval, 824 F.3d at 481 (emphasis added in bold).
LTTS only challenges the third element regarding the reasonable accommodation. At the
outset, LTTS asserts Penneti’s failure to accommodate claim is not actionable because LTTS
granted Penneti his requested leave. As briefed, Penneti asserts LTTS failed to accommodate his
disability under the ADA and TCHRA because LTTS delayed the grant of his requested leave.
That is, Penneti asserts LTTS failed to engage in the “interactive process” of finding an appropriate
accommodation for his limitation. In reply, LTTS avers there is no evidence that the “less than
four week” delay regarding the approval of Penneti’s accommodation was unreasonable,
intentional, motivated by discriminatory intent, or constituted a failure to engage in the “interactive
process.” (ECF No. 73 at 24-25).
As a fellow district court has explained:
Determining an appropriate accommodation for a disabled employee is an
interactive process between the employer and the employee. Loulseged v. Akzo
Nobel Inc., 178 F.3d 731, 735 (5th Cir. 1999). The ADA does not require that the
employer move with maximum speed to complete the process of choosing and
providing an accommodation. Id. at 737. The employer must simply engage in the
process in good faith. Schilling v. La. Dep’t of Transp. & Dev., 662 F. App’x 243,
246 (5th Cir. 2016). If either party causes delay in the process, however, it may
indicate a lack of good faith. Id. (“EEOC enforcement guidance states that
‘[u]nnecessary delays can result in a violation of the ADA.’ “) (citations omitted).

Johnson v. Walgreens Co., No. 3:21-CV-02648-L-BT, 2023 WL 2314991, at *4 (N.D. Tex. Feb.
6, 2023), report and recommendation adopted, No. 3:21-CV-2648-L, 2023 WL 2316194 (N.D.
Tex. Mar. 1, 2023). The Fifth Circuit has explained:
Indeed, undue delay is only an ADA violation to the extent it renders an
accommodation (if any) unreasonable; the statute provides no separate claim for
undue delay. As this Court has observed, the manner in which an employer
engages in the interactive process and the speed at which that process occurs inform
whether the employer has acted in good faith.
Schilling v. Louisiana Dep’t of Transportation & Dev., 662 F. App’x 243, 247 (5th Cir. 2016), as
revised (Oct. 5, 2016) (emphasis added in bold).
Here, the record shows a desire for Penneti to “take leave under FMLA” on November 26,
2019. (ECF No. 56 at 30). On December 7, 2019, Penneti initially corresponded that his requested
leave was for mental health, depression, exhaustion, and loss of appetite. (ECF No. 56 at 28). The
record shows the first time Penneti requested leave with purported dates of leave occurred on
December 11, 2019, (ECF No. 56 at 46); Penneti’s correspondence stated “Requested leave:
intermittent for 3 months, 2 days of leave every week to take 4 consecutive days of rest.” (ECF

No. 56 at 39). The attached FMLA form stated the date range of “December 16, 2019 to March
16, 2019.” (ECF No. 56 at 46) (emphasis added). The record shows both Penneti and LTTS
engaged in the interactive process regarding Penneti’s intermittent leave request. (ECF No. 56 at
6, 56, 51, 58, 90, 91, 92.). The record shows that on December 25, 2019, Penneti submitted specific
dates for requested leave of December 16, 2019, to March 6, 2020, as indicated on his doctor’s
note. (ECF No. 56 at 51, 58). Thus, the record shows Penneti submitted his first specific request
for intermittent leave from December 16, 2019, to March 6, 2020, sixteen days before LTTS
granted his intermittent leave request.
Here, the record shows neither party caused a delay in the interactive process of choosing
and providing an accommodation. Otherwise, the record is devoid of evidence that LTTS failed to

engage in the interactive process in good faith in a manner that violated the ADA. Furthermore,
the record shows Penneti received a reasonable accommodation when LTTS granted the requested
intermittent leave; no record in the evidence shows Penneti requested any other accommodation,
which LTTS denied. See Esparza v. Bank of Am., N.A., No. 3:12-CV-0662-D, 2013 WL 5208024,
at *13 (N.D. Tex. Sept. 17, 2013) (“[employee] has not pointed to any other accommodation
[employee] requested but was not given”). The record is devoid of evidence that LTTS failed to
make a reasonable accommodation. For those reasons, the Court must conclude Penneti has not
met his burden to raise a genuine issue of material fact on his failure to accommodate claims under
the ADA and TCHRA. Thus, the Court GRANTS LTTS’s motion for summary judgment on
Penneti’s failure to accommodate claims.9

VI. PENNETI’S FMLA DISCRIMINATION, RETALIATION, AND INTERFERENCE CLAIMS
Inter alia, the FMLA allows eligible employees working for covered employers to take
“reasonable leave for medical reasons.” 29 U.S.C. § 2601(b)(1)-(2)). “The FMLA grants ‘an
eligible employee’ up to twelve weeks of annual unpaid leave for ‘a serious health condition’ that
prevents him from performing the functions of his job.” Tatum v. Southern Co. Servs., 930 F.3d
709, 713 (5th Cir. 2019); Campos, 10 F.4th at 526. “An employer may not interfere with the
exercise of any right provided under the Act, nor may it ‘discharge . . . any individual for opposing

9 The Court notes that, in his response, Penneti appears to assert an ADA or related TCHRA retaliation
claim. (ECF No. 55 at 27-28). However, Penneti has pleaded no ADA retaliation claim. (ECF No. 1 at 4-
5). The singular occurrence of a “retaliation” term in his pleading is under his FMLA claims section, reading
“[d]efendants discriminated and retaliated against Plaintiff for exercising or attempt [sic] to exercise his
rights under the FMLA. See [sic] 29 U.S.C. §§ 2612, 2615.” (ECF No. 1 at 6) (referring to the FMLA).
Otherwise, Penneti’s pleadings for violations of the ADA or TCHRA contain no charges or assertions of
fact that indicate an assertion of an ADA or related TCHRA retaliation claim. (See ECF No. 1 at 4-5).
Even if the Court were to consider such an ADA or TCHRA claim for retaliation based on a request for a
reasonable accommodation as the corresponding protected activity, Penneti generally refers the Court to
the same evidence—without specific citation to the record—of a causal nexus as he generally avers in his
briefed arguments on his ADA and TCHRA claims. Assuming arguendo such a retaliation claim under the
ADA or related TCHRA statute was plead, no direct evidence of retaliation exists in the record, and the
McDonnell Douglas burden-shifting framework would apply. See Giles v. Gen. Elec. Co., No. CIV. 3-97-
CV-2774-H, 1999 WL 202573, at *5 (N.D. Tex. Apr. 6, 1999) (applying burden-shifting framework to
ADA retaliation claim). No evidence in the record shows a causal nexus between Penneti’s request for a
reasonable accommodation as a protected activity and any adverse action. See Giles, 1999 WL 202573, at
*5 (“To establish a prima facie case of retaliation under the ADA, Plaintiff must demonstrate 1) he
participated in a protected activity; 2) he was subject to an adverse employment action; and 3) a casual
connection exists between the protected activity and the adverse action.”) (citing Barrow v. New Orleans
Steamship Ass’n, 10 F.3d 292, 298 (5th Cir.1994)). Thus, the Court would similarly reject such a claim for
ADA or TCHRA retaliation.
any practice made unlawful’ by the Act.” Tatum, 930 F.3d at 713. “In the absence of direct
evidence of discriminatory intent, [the Court applies] the McDonnell Douglas framework to
determine the reason for an employee’s discharge.” Tatum, 930 F.3d at 713. (citations omitted).
Here, Penneti’s briefing asserts direct evidence exists for his FMLA discrimination,

retaliation, and interference claims, but Penneti refers the Court to no evidence in the record of
direct evidence for these claims. Furthermore, the Court has found no corresponding direct
evidence in the record. Therefore, the Court next addresses Penneti’s FMLA claims under the
respective McDonnell Douglas burden-shifting framework.
A. FMLA Discrimination and Retaliation
The prima facie elements for FMLA discrimination and retaliation are similar. “To state a
prima facie claim for discrimination or retaliation under the FMLA, the plaintiff must allege that
‘(1) he is protected under the FMLA; (2) he suffered an adverse employment decision; and either
(3a) that the plaintiff was treated less favorably than an employee who had not requested leave
under the FMLA; or (3b) the adverse decision was made because of the plaintiff’s request for

leave.’” Hester v. Bell-Textron, Inc., 11 F.4th 301, 305 (5th Cir. 2021) (quoting Bocalbos v. Nat’l
W. Life Ins. Co., 162 F.3d 379, 383 (5th Cir. 1998)) (emphasis added in bold); see, e.g., Lanier v.
Univ. of Texas Sw. Med. Ctr., 527 F. App’x 312, 317 (5th Cir. 2013) (addressing prima facie
elements of FMLA retaliation claim). Both Parties brief Penneti’s FMLA discrimination and
retaliation claims jointly, so the Court addresses these claims jointly, hereunder.
LTTS asserts Penneti cannot establish a causal connection between his request for FMLA
leave and any adverse employment action by LTTS. In response, Penneti fails to independently
brief his FMLA claims. Instead, Penneti relies upon the arguments and evidence he briefed in his
“ADA analysis” and evidence of “discriminatory and retaliatory actions”—as briefed in his
responses on his ADA and TCHRA claims. (ECF No. 55 at 29). Penneti directs the Court to no
specific evidence, statute, or case law in this argument. (See ECF No. 55 at 29).
As concluded above, the sole adverse employment decision Plaintiff sustained was his
ultimate termination from LTTS. It is undisputed that Penneti was protected under the FMLA.

Thus, in the FMLA discrimination and retaliation contexts, the respective questions before the
Court are (i) whether Penneti was treated less favorably than an employee who had not requested
leave and (ii) whether Penneti’s termination occurred because of his request for leave.
First, there is no evidence in the record of LTTS treating Penneti less favorably than an
employee who had not requested leave; neither LTTS nor Penneti offer any evidence of any
comparable employee.10 Second, there is no evidence in the record that Penneti’s termination
occurred because of his request for leave. To the contrary, the record shows (i) LTTS attempted to
secure further work for Penneti but (ii) LTTS could not secure further work for Penneti before the
separation—as noticed—was set to occur. (See ECF No. 44 at 94-95, 101-31). Thus the record is
devoid of evidence for the third element(s) of Penneti’s respective FMLA discrimination and

10 The Court notes the Fifth Circuit appears to require “nearly identical” comparators in the FMLA
discrimination context:
As noted by the district court, Burton pointed to no summary judgment evidence that “she
was treated less favorably than an employee who had not requested leave under the FMLA;
or [that] the adverse decision was made because she took FMLA leave.” Hunt, 277 F.3d at
768. Her references to the treatment of fellow employee JoAnn Cole did not show either
that Cole had never used FMLA leave or that Cole’s infraction was “nearly identical” to
the infractions for which Burton was dismissed. See Wallace v. Methodist Hosp. System,
271 F.3d 212, 220–21 (5th Cir.2001) (compared employee’s conduct must be “nearly
identical” to plaintiff’s). Burton therefore did not make a prima facie case of discrimination
under the FMLA.
Burton v. Buckner Child. & Fam. Servs., Inc., 104 F. App’x 394, 396 (5th Cir. 2004) (addressing FMLA
discrimination claim).
retaliation claims. The Court GRANTS LTTS’s motion for summary judgment as to Penneti’s
FMLA discrimination and retaliation claims.
B. FMLA Interference
“A prima facie case of FMLA interference requires an employee to show that: 1) he was

an eligible employee; 2) his employer was subject to FMLA requirements; 3) he was entitled to
leave; 4) he gave proper notice of his intention to take FMLA leave; and 5) his employer denied
the benefits to which he was entitled under the FMLA.” Campos, 10 F.4th at 526 (citation omitted).
The Fifth Circuit “does not apply categorical rules for the content of the notice” and instead focuses
on what is “‘practicable’ based on the facts and circumstances of each individual.” Lanier, 527 F.
App’x at 316 (citing Manuel v. Westlake Polymers Corp., 66 F.3d 758, 762-64 (5th Cir. 1995)); see
also 29 C.F.R. § 825.303(b). “The employer is not required to be clairvoyant,” but “may have a
duty to inquire further if statements made by the employee warrant it.” Lanier, 527 F. App’x at
316 (citing Satterfield v. Wal-Mart Stores, Inc., 135 F.3d 973, 980 (5th Cir. 1998)). “Calling in
‘sick’ without providing more information will not be considered sufficient notice to trigger

an employer’s obligations under the Act.” 29 C.F.R. § 825.303(b). The Fifth Circuit has explained:
Even when an employee’s need for leave is unforeseeable, the regulations make
clear the employee’s duty to comply with the employer’s policy. “When the need
for leave is not foreseeable, an employee must comply with the employer’s usual
and customary notice and procedural requirements for requesting leave, absent
unusual circumstances.” 29 C.F.R. § 825.303(c).

Acker v. Gen. Motors, L.L.C., 853 F.3d 784, 789 (5th Cir. 2017).
For a FMLA interference claim, the employee also must show that the violation prejudiced
him. Campos, 10 F.4th at 526 (citation omitted). The Fifth Circuit requires courts to “conduct[] a
case-by-case examination of whether a plaintiff has been prejudiced by noncompliance with a
regulation.” Downey v. Strain, 510 F.3d 534, 541 (5th Cir. 2007). In discussing prejudice in the
FMLA interference context, another court has explained:
“Prejudice exists when an employee losses compensation or benefits by reason of
the violation, sustains other monetary losses as a direct result of the violation, such
as the cost of providing care, or suffers some loss in employment status such that
equitable relief is appropriate.”

Matson v. Sanderson Farms, Inc., 388 F. Supp. 3d 853, 873 (S.D. Tex. 2019) (block quoting Jones
v. Children’s Hosp., 58 F. Supp. 3d 656, 669 (E.D. La. 2014)); see, e.g., Garcia v. Randolph-
Brooks Fed. Credit Union, No. SA-18-CV-00978-OLG, 2019 WL 1643741, at *3 (W.D. Tex. Apr.
16, 2019), report and recommendation adopted, No. CV SA-18-CA-978-OLG, 2019 WL 2565270
(W.D. Tex. May 9, 2019) (discussing the same).
Here, LTTS asserts there is no evidence (i) that it denied benefits to which Penneti was
entitled under the FMLA and (ii) that any such violation prejudiced Penneti. In response, Penneti
argues he was denied benefits because (i) LTTS discouraged Penneti from taking leave as
requested; (ii) he received a shorter intermittent leave period than requested and (iii) LTTS
removed Penneti from the Sonim project. Penneti offers no response regarding the sixth element
of prejudice.
The Court pretermits discussion of whether LTTS denied benefits to which Penneti was
entitled under the FMLA because there is no evidence in the record that Penneti was prejudiced.
The record shows, and it is uncontroverted, that for Penneti’s requested reasonable
accommodation, LTTS required a doctor’s note for Penneti’s requested leave as “process and
policy.” (ECF No. 44 at 77; ECF No. 56 at 6)11 The record shows Penneti complied with this

11 Penneti avers that “Tewari testified that she is not aware of any written policy requiring any
documentation in additional [sic] to the medical certification.” (ECF No. 55 at 13-14). Penneti refers the
Court to “App. 46,”—which is (ECF No. 56 at 49)—but that page of summary judgment evidence does not
contain such evidence. Indeed, the Court has found no evidence in the record that Tewari was unaware of
policy on December 25, 2019, and Penneti received his accommodation sixteen days later. (ECF
No. 56 at 48-49, 51, 58). Even if the Court were to assume arguendo of Penneti’s briefing that (i)
he was “discouraged” from taking leave and (ii) his leave was “cut short” were allegations of
prejudice, there is no evidence in the record that denial of his requested intermittent leave from

December 16, 2019 to January 10, 2020 prejudiced Penneti in any substantive way. See Campos,
10 F.4th at 527. That is, even if the Court assumes the delay of the requested leave from December
19, 2019, to January 10 2020, constituted a violation of the FMLA, there is no evidence that
Penneti lost compensation, benefits, other monetary losses, or loss in employment status as a result
of this violation. See Matson, 388 F. Supp. 3d at 873. To the contrary, the record shows he
maintained the same compensation and benefits until his ultimate termination on May 13, 2020.
For those reasons and in light of the record, the Court must conclude Penneti has not proved
the prejudice necessary to prevail on a FMLA interference claim. See Campos, 10 F.4th at 527.

written policy requiring additional documentation. Instead, the record shows that the LTTS policies
regarding reasonable accommodations state:
Employees must also cooperate in good faith in the Company’s efforts to evaluate the
accommodation. This may involve meetings or discussions with you, the Human Resources
Department, Management and/or your supervisors or others to discuss the accommodation
or may involve gathering additional information from your health care provider or others
regarding the accommodation.
ECF No. 44 at 60) (emphasis added). Furthermore, Penneti avers he “immediately” requested details for
what was required on the doctor’s note on December 23, 2020, but the record of Tewari’s instructions to
Penneti regarding the doctor’s note from December 16, 2020 already stated:
Hi Rajesh,
In order for HR to review your case please send me a doctors note clearly indicating the
restrictions and the start date and end date of the restrictions. . . . As soon as I receive your
note we will get back to you [sic]
(ECF No. 56 at 54) (emphasis added).
Thus, the Court GRANTS LTTS’s motion for summary judgment as to Penneti’s FMLA
interference claim.
VII. PRETEXT
As determined above, Penneti has failed to direct the Court to evidence on at least one

essential element for each of his claims asserted under the ADA, TCHRA, and FMLA. Thus,
Penneti has failed to make out a prima facie case for discrimination and retaliation as required and
the burden does not shift to LTTS. See, e.g., Haynes v. Pennzoil Co., 207 F.3d 296, 301 (5th Cir.
2000) (ending its analysis and affirming district court’s grant of summary judgment after
concluding plaintiff “failed to establish a prima facie case of racial discrimination under Title
VII”); Owens 33 F.4th at 835 (applying the McDonnell Douglas framework to a retaliation claim
under Title VII and 42 U.S.C. § 1981). Nevertheless—assuming arguendo that Penneti had met
his burden to show a prima facie case—LTTS produced evidence of a legitimate, non-
discriminatory, and non-retaliatory reason for terminating Penneti’s employment. Owens, 33 F.4th
at 835 (discussing pretext in the discrimination context); Feist, 730 F.3d at 454 (discussing pretext

in the retaliation context). Here, LTTS produced evidence of one overarching reason for the
termination—LTTS was not able to secure further work for Penneti.
Next, under the third step of the McDonnel Douglas framework, Penneti must counter this
evidence of LTTS’s inability to secure further work with “substantial evidence” for the termination
as pretextual. See Owens, 33 F.4th at 825; see also Vaughn, 665 F.3d at 637. For pretext in the
discrimination context, the Fifth Circuit has explained:
The plaintiff must rebut each nondiscriminatory reason articulated by the employer.
Wallace, 271 F.3d at 220. A plaintiff may establish pretext either through evidence
of disparate treatment or by showing that the employer’s proffered explanation is
false or “unworthy of credence.” Id.; Reeves, 530 U.S. at 143, 120 S.Ct. at 2106.
An explanation is false or unworthy of credence if it is not the real reason for the
adverse employment action. See Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893,
899 (5th Cir. 2002).

Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003) (addressing discrimination claims under
Title VII and the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of
1978). “Disparate treatment occurs where an employer treats one employee more harshly than
other ‘similarly situated’ employees for ‘nearly identical’ conduct.” Vaughn, 665 F.3d at 637. For
pretext in the retaliation context, the Fifth Circuit has explained: “[a]n employee establishes pretext
by showing that the adverse action would not have occurred “but for” the employer’s retaliatory
reason for the action.” Hague v. Univ. of Texas Health Sci. Ctr. at San Antonio, 560 F. App’x 328,
336 (5th Cir. 2014) (citing Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 477, 479–80 (Tex.
2001)). Nonetheless,”[t]he standard of causation for reviewing pretext is less stringent under Texas
state law than under federal law. Campos, 10 F.4th at 521. In addressing a disability discrimination
claim under the TCHRA, the Fifth Circuit explained:
Though a “but for” standard would apply under federal statutes, the Texas
framework applies a “motivating factor” standard in all state unlawful-
employment-practice claims under Section 21.125 of the Texas Labor Code. Id. at
480. Because Section 21.125 includes disability discrimination, the motivating-
factor test is applicable here. See Tex. Lab. Code § 21.125(a).

Campos, 10 F.4th at 521. As discussed above, Penneti’s sole adverse employment decision was
his termination.
Regarding pretext in the discrimination context, Penneti first avers that he was removed
from the Sonim and OMADM projects “because of his disability,” but Penneti refers the Court to
no corresponding evidence. And, upon review of the summary judgment evidence, the record is
devoid of direct evidence or circumstantial evidence, thereof. Penneti argues LTTS did not place
him on the “bench” for other work opportunities, but there is neither evidence nor argument as to
how this failure constituted pretext for his termination.12 In passing, Penneti appears to assert a
comparator as “the individual who replaced Penneti on the Sonim project and had his Sonim
project extended until June 2020 and was immediately placed on another project,” but Penneti
refers the Court to no evidence of (i) this “individual,” (ii) how or why Penneti and the “individual”

were comparators, or (iii) any corresponding evidence that LTTS treated Penneti more harshly
than this “individual” who was similarly situated for nearly identical conduct. See Vaughn, 665
F.3d at 637.13 Penneti asserts LTTS’s reason for termination was false or unworthy of credence
because (i) this other “individual” employee was placed on another project and (ii) “that the mobile
testing division of LTTS was not as impacted by COVID-19 as other industries.” However, again,
Penneti fails to direct the Court to corresponding evidence in the record. Even assuming such
definitive evidence in the record existed, such evidence fails to show LTTS’s inability to secure
further work for Penneti was false or unworthy of credence.
Penneti does not independently brief pretext in the retaliation context—instead generally
relying on the same pretext bases the Court rejected, above.14 In review of the summary judgment

12 As undisputed, LTTS attempted to secure further work for Penneti but was not able to do so. Assuming
arguendo LTTS’s failure to place Penneti on the “bench” constituted a deviation from LTTS standard
procedure, “mere deviations from standard procedure do not show pretext or improper discrimination unless
the plaintiff can connect the departure from procedure to a discriminatory motive.” Tagliabue v. Orkin,
L.L.C., 794 F. App’x 389, 398 (5th Cir. 2019). Here, Penneti offers neither argument nor evidence that the
departure from placing him on the “bench” was tied to any discriminatory motive.
13 Elsewhere in their briefing, the Parties discuss another employee named Srikanth Girigri, but no evidence
in the record indicates Girigiri was a comparator. That is, there is no evidence Penneti and Girigiri were
similarly situated. Saketkoo v. Administrators of Tulane Educ. Fund, 31 F.4th 990, 998 (5th Cir. 2022)
(addressing gender discrimination claim under Title VII); see generally Lee v. Conecuh Cnty. Bd. of Ed.,
634 F.2d 959, 962 (5th Cir. 1981) (discussing comparators in the sex-based equal protection context).
Furthermore, there is no evidence of any other employee requesting intermittent FMLA leave.
14 Penneti does not brief pretext in the FMLA interference context. See Caldwell v. KHOU-TV, 850 F.3d
237, 245 (5th Cir. 2017) (collecting cases); see, e.g., Miller v. Metrocare Servs., 809 F.3d 827, 832 (5th
Cir. 2016) (where a plaintiff brought both interference and retaliation claims under the FMLA, requiring
the plaintiff to offer sufficient evidence that an employer’s articulated reason for firing him was
“a pretext for discrimination” in support of those claims).
evidence for pretext under both the “but for” and “mixed-motive” causation standards, the record
is devoid of evidence of (1) disparate treatment or (11) that LTTS’s inability to secure Penneti further
work was false or unworthy of credence. See Laxton, 333 F.3d at 578. The Court must conclude
that Penneti fails to present substantial evidence that LTTS’s reason for terminating his
employment—LTTS’s inability to secure further work for Penneti—was false, unworthy of
credence, or not true in either the discrimination or retaliation contexts. Owens, 33 F.4th at 825.
Thus, the Court must conclude the record contains no evidence of pretext for Penneti’s
corresponding ADA, TCHRA, and FMLA claims.
VIII. CONCLUSION
For the reasons enumerated above, the Court GRANTS LTTS’s motion for summary
judgment on all of Penneti’s claims against LTTS.
SO ORDERED.
20th day of July, 2023.

ADA BROWN
UNITED STATES DISTRICT JUDGE

MEMORANDUM □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ age: 28 of 28°

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10670999. Public record. Not legal advice.