Vera Claiborne v. Recovery School District

Case: 16-30667 Document: 00514024570 Page: 1 Date Filed: 06/07/2017

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 16-30667 FILED

June 7, 2017

Lyle W. Cayce

VERA CLAIBORNE, Clerk

Plaintiff - Appellant

v.

RECOVERY SCHOOL DISTRICT,

Defendant - Appellee

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:14-CV-483

Before JONES and OWEN, Circuit Judges, and ENGELHARDT, District

Judge. *

KURT D. ENGELHARDT, District Judge:**

Appellant Vera Claiborne (Claiborne) appeals an adverse summary

judgment dismissing with prejudice her claims asserted against her former

* Chief Judge of the Eastern District of Louisiana sitting by designation.

** Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should

not be published and is not precedent except under the limited circumstances set forth in

5TH CIR. R. 47.5.4.

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employer, Appellee Recovery School District (RSD), under the Americans with

Disabilities Act (ADA), 42 U.S.C. § 12101, et seq., and Louisiana Revised

Statutes 23:301, et seq., and 23:1361(B). For the following reasons, we

AFFIRM the district court’s judgment.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Claiborne began working for RSD in Baton Rouge, Louisiana, on May 22,

2012. She was assigned to work at Prescott Middle School, which at that time

shared a building with Istrouma High School. Prescott utilized 14-16 rooms

located on two floors in the rear of the building. The faculty and student

restrooms, as well as two of Prescott’s 11-12 classrooms, were on the first of

the two floors; the remainder of the classrooms, including the computer rooms,

the administrative office, and the teacher’s lounge, were on the second. The

building did not have an elevator.

As a paraprofessional at Prescott, Claiborne worked primarily with

special education students with job duties requiring her presence throughout

the day on both floors of the school. During classroom instructional time,

Claiborne continuously walked around the room to monitor and assist the

students with their assignments. She also was tasked with escorting students

between the (first and second floor) classrooms, 1 the (first floor) bathrooms,

and the cafeteria, which required that she traverse the stairs between the two

floors several times during the day. 2 Claiborne additionally monitored the

students during their lunch, requiring that she “stand the whole time and walk

around” the cafeteria. She also had “bus duty” in the mornings, which

1 Two of those rooms were computer classrooms on the second floor. There was

no computer classroom on the first floor of the building. In fact, one of the upstairs computer

rooms was converted from a Physical Education classroom when extra computer space was

needed.

2 Unfortunately, the record does not clearly identify the floor on which the

Prescott cafeteria was located.

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necessitated that she first walk upstairs to sign in, review the schedule, and

check email, and then walk downstairs to wait until the last bus arrived.”

Thereafter, she would monitor the halls between and after classes. She stood

during all of these tasks.

On November 15, 2012, while escorting two students to the

administrative office, Claiborne slipped and fell in the hallway. A day or two

later, she saw a doctor, 3 who diagnosed her with a sprained back. After her

injury, Claiborne used a cane, and had a difficult time walking up and down

the stairs at Prescott.” 4 As a result, she began experiencing persistent pain in

her back, neck, and legs.

On November 29, 2012, Claiborne met with Prescott Principal Rodney

Coats to request an accommodation for her injuries. Specifically, she requested

that he modify her responsibilities such that she would no longer have to climb

the stairs as frequently throughout the workday. She also asked to be excused

from lunch and bus duty. The day after their discussion, the guidance

counselor was permitted to take Claiborne’s class to and from lunch.

Thereafter, however, the guidance counselor was too busy; thus, Claiborne

resumed her normal duties.

Again seeking an accommodation in February or March 2013 from Coats,

Claiborne submitted a (undated) note from her physical therapist stating, “Ms.

Claiborne is able to go up to her classroom at the beginning of the day and

remain on the 2nd floor,” and asking that she be excused from “ascending and

descending stairs consistently during the school day until further notice.” 5

3 Claiborne contends that she began receiving workers’ compensation medical

benefits in November 2012, but did not begin receiving wage benefits until approximately

June 2013, after she had exhausted her sick leave benefits.

4 Claiborne testified that, in going up the stairs, she had to use her “walking

stick,” and the railing, and go “real slow.” One day, she almost fell.

5 The note from Ryan Bozant, PT, DPT, states:

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According to Claiborne, the therapist also requested that she be allowed to

periodically sit in a chair for a while to rest. 6 In her deposition, Claiborne

testified that “right after he got the request . . . [Principal Coats] “did tr[y] –

he told me . . . when I leave from bus duty, then don’t come right back

upstairs[.] [Instead,] go to a classroom and help in that classroom and monitor

the special ed[ucation].” Her work, however, was not otherwise modified and

she thereafter made no other requests for accommodation.

In early April 2013, while Claiborne was out on sick leave, she received

a telephone call from the school secretary, her sister, Brenda Claiborne, who

purportedly informed her that she would be fired if she did not report to

Prescott the next day to help administer the Louisiana Educational

Assessment Program (LEAP) test. As a result of the phone call, Claiborne

returned to work on or around April 10, 2013. She was unable to finish the

second day of testing, however, because of pain she attributed to packing and

transporting the test documents downstairs, and then standing and walking

around the room during the test. Upon hearing of her distress during lunch

time on the second day, Principal Coats instructed her to go home. According

to Claiborne, he added: “You need to retire because it’s not getting any better.

With you working and trying to move around and crying, that’s not good.”

Claiborne remained on leave from April 11, 2013 through the end of the

semester. In mid-June 2013, Claiborne learned that she had been terminated

Please excuse Ms. Vera Claiborne from ascending and

descending stairs consistently during the school day until

further notices. Ms. Claiborne is able to go up to her classroom

at the beginning of the day and remain on the 2nd floor. Please

feel free to contact me at 225-275-3177 with any questions.

6 In her deposition, Claiborne suggests that she wanted to sit for 30 minutes

without standing. No written evidence of this request, however, appears in the record.

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when she telephoned RSD’s central office to ask a question about her pay

statement. Specifically, Claiborne alleges that RSD’s HR employee, Brandy

Whitfield, told her that she had been terminated because she was “at risk.”

From this, and her additional assertion that her position was filled by a non-

disabled employee, Ashley White, Claiborne attributes her termination to her

disability, her request for accommodation, and her application for worker’s

compensation benefits.

In December 2013, Claiborne filed an EEOC Charge of Discrimination

against RSD. When mediation proved unsuccessful, Claiborne filed a lawsuit

in state court, alleging violations of the ADA and Louisiana state law. RSD

removed the case to federal court and filed a motion for summary judgment as

to each of Claiborne’s four claims. In support of its motion, RSD argued that

Claiborne was unable to establish a prima facie case for her failure to

accommodate claim because no “reasonable accommodation existed at RSD

that would have allowed her to perform the essential functions of her job.” RSD

also argued Claiborne could not succeed on her three termination claims

because RSD had a legitimate, nondiscriminatory reason for each claim.

The district court granted summary judgment in RSD’s favor on each of

Claiborne’s claims. This appeal followed.

DISCUSSION

We review the district court’s grant of summary judgment de novo. Gray

v. Powers, 673 F.3d 352, 354 (5th Cir. 2012). Summary judgment is

appropriate “if the movant shows that there is no genuine dispute as to any

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

R. CIV. P. 56(a). A genuine dispute exists “if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is proper

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when “the nonmovant fails to establish facts supporting an essential element

of her prima facie claim.” Cutrera v. Bd. of Supervisors of La. State Univ., 429

F.3d 108, 110 (5th Cir. 2005). We view the evidence in the light most favorable

to the nonmovant. Gray, 673 F.3d at 354. In our analysis, we neither make

credibility determinations nor weigh the evidence. Id. Claiborne argues that

the district court failed to acknowledge RSD’s affirmative duty to attempt to

accommodate her disability, leading to a misapplication of Federal Rule of Civil

Procedure 56 to the facts of this case. She further contends that the district

court improperly weighed evidence in summarily dismissing her failure to

accommodate and termination claims.

I. Failure to Accommodate Claim 7

Claiborne first argues that RSD failed to reasonably accommodate her

disability by not engaging in a meaningful conversation about how to alleviate

the pain she continued to suffer during the workday. She claims RSD had, and

did not satisfy, an affirmative duty to engage in the “interactive process” to

determine how her needs could be accommodated. See Cutrera, 429 F.3d at

112. We note, however, that the “interactive process is not an end in itself – it

is a means to the end of forging reasonable accommodations.” Silva v. City of

Hidalgo, Texas, 575 Fed. Appx. 419, 424 (2014) (quoting Loulseged v. Akzo

Nobel Inc., 178 F.3d 731, 736 (5th Cir. 1999)). Thus, it is when “an employer's

unwillingness to engage in a good faith interactive process leads to a failure to

7 Noting that Claiborne requested an accommodation for her disability during

the number of months that she remained employed by RSD following her November 2012

injury, the Court considers the viability of her reasonable accommodation claim separately

from her three termination claims. See, e.g., Dillard v. City of Austin, Texas, 837 F.3d 557,

562 (5th Cir. 2016) (“Apart from any claim that an action was motivated by the employee's

disability, an employer's failure to reasonably accommodate a disabled employee may

constitute a distinct violation of the [ADA].”).

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reasonably accommodate an employee [that] the employer violates the ADA.”

Id. (emphasis added).”

The ADA requires employers to make “reasonable accommodations to

the known physical or mental limitations of an otherwise qualified individual

with a disability who is an applicant or employee, unless such covered entity

can demonstrate that the accommodation would impose an undue hardship on

the operation of the business of such covered entity.” 42 U.S.C. § 12112(b)(5).

Thus, to recover on a failure to accommodate claim, a plaintiff must prove that:

“(1) [she] is a qualified individual with a disability; (2) the disability and its

consequential limitations were known by the covered employer; and (3) the

employer failed to make reasonable accommodations for such known

limitations.” Feist v. La., Dept. of Justice, Office of the Attorney General, 730

F.3d 450, 452 (5th Cir. 2013) (quotation marks omitted).

To satisfy her summary judgment burden as to the first element,

Claiborne must have put forth admissible evidence sufficient to create a

material dispute as to whether she is a “qualified individual with a disability.”

Feist, 730 F.3d at 452. The ADA defines “disability” as “a physical or mental

impairment that substantially limits one or more major life activities . . . .” 42

U.S.C. § 12102(1)(A). “Major life activities” include both walking and standing.

Id. Claiborne alleged that she suffers a disability in the form of severe neck,

back, and leg pain resulting from her November 2012 fall at work. For appeal

purposes, we assume Claiborne had a “disability” as contemplated by the ADA.

Further, given Principal Coats’ awareness of Claiborne’s injury and difficulties

at work, we assume that the “knowledge” requirement of the second element

also is met.

The next question is whether Claiborne was “qualified” under the ADA.

Proving that status required that she put forth admissible evidence

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establishing “(1) that [she] could perform the essential functions of the job in

spite of [her] disability or (2) that a reasonable accommodation of [her]

disability would have enabled [her] to perform the essential functions of the

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

(emphasis added).

By her own admission, because the building had no elevator, Claiborne

could not perform her job responsibilities without “walk[ing] up and down the

stairs [between the school’s two floors] repeatedly during the work day.”

Monitoring and assisting the students to whom she was assigned also required

that she be able to stand and walk around for extended periods of time. It is

clear from the record, however, that Claiborne could not make those repeated

trips up and down the stairs, or stand and walk for extended periods of time,

after her fall, because of her chronic pain. Thus, it is evident that Claiborne

could not perform the essential functions of her job in spite of her disability,

i.e., without any accommodation from her employer.

Accordingly, for purposes of the first element of Claiborne’s failure to

accommodate claim, the query becomes whether a “reasonable

accommodation” existed that would have allowed her to perform the essential

functions of her job, such that she was “qualified”; and if so, for purposes of the

third element, whether or not RSD made that accommodation. The district

court found Claiborne’s failure to accommodate claim lacking because no

reasonable accommodation was shown to be available. Specifically, the Court

concluded: “RSD would have had to relieve [Claiborne] of her essential job

functions and assign her job functions to someone else” to accommodate her

requests.

Providing a “reasonable accommodation” under the ADA does not

require the employer to “relieve the employee of any essential functions of the

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job, modify the actual duties, or reassign existing employees or hire new

employees to perform those duties.” Robertson v. Neuromedical Ctr., 161 F.3d

292, 295 (5th Cir. 1998); see also Turco, 101 F.3d at 1094 (accommodation that

would result in other employees having to work harder or longer or is not

required). Thus, a disabled employee cannot perform her job with reasonable

accommodation if the only reasonable accommodation is for the employee not

to perform the essential functions of her job. See Barber v. Nabors Drilling

U.S.A., Inc., 130 F.3d 702, 709 (5th Cir. 1997).

In this instance, Claiborne contends that RSD could have reasonably

accommodated her disability by (1) reducing the number of times she was

required to use the stairs each workday, (2) allowing her to exchange work

assignments with a colleague, (3) limiting her classroom time to the school’s

first floor classrooms, (4) providing her with a wheelchair or desk chair with

wheels, and/or (5) allowing her to sit, rather than stand, for certain periods of

time. For obvious reasons, permitting Claiborne to refrain from traversing the

stairs during the day would hinder her ability to escort students to and from

the (first and second floor) classrooms and the (first floor) restrooms as needed.

And allowing her to swap assignments with her co-worker, Roger Cooper

(because he worked with only one special education student, unlike Claiborne,

who worked with several), would amount to a reassignment of her

responsibilities to another employee. As stated in Robertson, such measures

are not required by the ADA. Besides, Claiborne makes no evidentiary

showing that she could fulfill Cooper’s job duties, and vice versa; that

undertaking the tasks assigned to him would necessarily adequately

accommodate her disability; and that any federal funding requirements

applicable to Cooper’s assigned student would be satisfied if she took his place.

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A dearth of evidence is likewise fatal to Claiborne’s suggestion that her

classroom duties be limited to the two classrooms located on the school’s first

floor. Indeed, Claiborne points to no evidence that such a change was even

feasible. 8 The same is true relative to Claiborne’s request that she be provided

a chair with wheels to use in performing her monitoring duties, or otherwise

allowed to periodically sit during classroom time, bus duty, lunch duty, and/or

hallway duty. Specifically, Claiborne has failed to make the necessary

evidentiary showing relative to whether such measures would satisfactorily

accommodate her disability, while still allowing her to properly monitor and

assist the students, as needed, to perform the essential functions of her job.

Rather, as noted by the district court, Claiborne’s assertions regarding

reasonable accommodations are based largely on little more than speculation.

Such conclusory and speculative assertions fall far short of the mark. For these

reasons, we affirm the district court’s conclusion that Claiborne failed to satisfy

her summary judgment evidentiary burden relative to her reasonable

accommodation claim. 9 Accordingly, on the facts presented here, we likewise

find no reversible error relative to the lower court’s rejection of Claiborne’s

claim that RSD further violated the ADA and Louisiana law by not engaging

in a more involved interactive process.

8 For instance, Claiborne testified that at least some of her classroom time was

spent in the two second floor computer rooms. No showing is made, however, as to whether

Claiborne’s services were needed only in connection with instructional time requiring the use

of the computers and/or whether the downstairs classrooms were properly outfitted for use

with multiple computers by the students. Further, Coats testified that the school did not

have access to any vacant rooms.

9 Indeed, it is not apparent from the record or the parties’ briefs that Claiborne’s

counsel posited a single deposition question to Principal Coats, or any pertinent RSD

personnel, relative to Claiborne’s accommodation requests, RSD’s responses thereto, and

what additional measures, if any, were or could have been taken to attempt to reasonably

accommodate Claiborne’s disability such that her employment with RSD could continue. This

is particularly surprising considering averments by RSD’s central office personnel that they

were unaware of any accommodation request by Claiborne.

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II. Discriminatory Discharge Claim

Claiborne next claims that RSD violated the ADA and Louisiana law by

terminating her employment because of her disability. When, as here, a

plaintiff offers only circumstantial evidence to prove discrimination under the

ADA, we apply the familiar McDonnell Douglas burden-shifting framework.

See, e.g., E.E.O.C. v. Chevron Phillips Chem. Co., LP, 570 F.3d 606, 615 (5th

Cir. 2009). Under this framework, an aggrieved employee must first establish

a prima facie case for discrimination with the elements being as follows:

That (a) she is disabled, has a record of having a disability, or is

regarded as disabled, (b) she is qualified for her job, (c) she was

subjected to an adverse employment action on account of her

disability or the perception of her disability, and (d) she was

replaced or treated less favorably than non-disabled employees.

Id. If a plaintiff establishes each element of her prima facie case, the burden

then shifts to the employer to “articulate a legitimate, nondiscriminatory

reason for the adverse employment action.” Id. The burden-shifting framework

then falls away, and any evidence tending to show the articulated reason was

pretext for discrimination may be considered. Id.

The district court assumed that Claiborne had established a prima facie

case of discriminatory discharge before analyzing RSD’s reason for her

termination. Nevertheless, because we have found that Claiborne failed to

meet her summary judgment burden regarding the availability of a reasonable

accommodation, we likewise conclude, as an initial matter, that the “qualified”

element (b) of her prima facie discrimination case is not met.

We additionally find that Claiborne similarly failed to establish element

(d) of her prima facie case, i.e., that she was replaced by a non-disabled person.

As set forth above, Claiborne contends that Ashley White, a non-disabled

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employee, was hired to replace her after her termination. RSD disputes this

allegation, maintaining that Claiborne’s “position was eliminated and never

filled again.” Significantly, White’s RSD Employee Notification Form lists her

position as a “clerk,” not a “paraprofessional” as Claiborne’s does, and

Claiborne has put forth no competent evidence to suggest or demonstrate the

contrary actually is true with respect to White. Although Claiborne points to

written declarations from her sister/school secretary, Brenda Claiborne, and

former school office manager, Tamatha Brown, averring that the alleged

replacement occurred, the record is void of evidence that either declarant was

competent to establish, for instance, that White even arguably replaced

Claiborne, as a practical matter, by performing the same job duties. 10 Nor has

Claiborne presented any admissible evidence that White was ever referred to,

or treated as, a paraprofessional while working at Prescott during the year it

remained open after Claiborne’s termination. Hence, on this record, Claiborne

has failed to articulate a prima facie case that her termination was the result

of ADA discrimination.

Furthermore, even if we assume, as did the district court, that Claiborne

had established a prima facie case, RSD has articulated a legitimate,

nondiscriminatory reason for Claiborne’s termination. Specifically, according

to RSD, Claiborne was laid off as a part of a comprehensive reduction in force

(RIF), she was never replaced, and, because of budgetary restraints, her

10 With respect to White, both declarations offer only insufficiently conclusory

statements devoid of any factual support. Brenda Claiborne states: “After RSD terminated

Vera Claiborne’s employment, RSD hired two or more individuals as paraprofessionals

including Ms. Ashley White, who is RSD’s Executive Director, Lakeisha Robichaux’s sister.”

Tamatha Brown states: “Vera was replaced by Ashley White, the sister of RSD’s Baton Rouge

Branch Manager, Lakeisha Robichaux.”

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position was eliminated. 11 We have previously recognized that a RIF “is itself

a legitimate, nondiscriminatory reason for discharge.” E.E.O.C. v. Tex.

Instruments Inc., 100 F.3d 1173, 1181 (5th Cir. 1996).

In this instance, RSD Deputy Chief of Staff Laura Hawkins testified that

Prescott faced a “rapidly plummeting enrollment.” As a result, fewer staff

members were necessary to accommodate the student body. Thus, a RIF was

necessary to balance the budget. The RIF, moreover, was not just at Prescott.

Rather, in 2013, RSD had “a very tight budget and all the schools were going

to have to operate at bare bones level.” As such, cuts were made district-wide,

impacting employees at all ten of the schools that RSD directly ran, including

in New Orleans, and at the RSD central office.

As explained by Hawkins, with a RIF, the basics are considered – what

funds exist, the amount of school enrollment, and the budget. Hence, an

evaluation is made to determine which staff could be eliminated in order to

bring about a balanced budget. Maintaining essential employees, including

teachers, is an obvious priority. Thus, school “support staff usually is the first

to be laid off because they” unlike teachers “are not considered essential to the

school staying open.”

Consistent with these principles, the school secretary at Prescott,

Claiborne’s sister, Brenda Claiborne, was laid off at the end of the semester

(but returned to duty for a short time during the summer because help was

needed). On the other hand, the Prescott teachers, as essential school

personnel, were not subject to the 2013 RIF. “Special education”

paraprofessionals at Prescott similarly were not laid off because federal IDEA

funding guidelines required their placements with certain individual special

11 Indeed, despite RSD’s cost-saving efforts with the RIF, Prescott closed after

the 2013-14 school year. At that point, all remaining Prescott employees were laid off.

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education students. 12 “Regular” paraprofessionals, to the contrary, could “be

cut at any time because [those] positions [were] not necessary or essential” to

the school’s operations. 13 Thus, according to RSD Deputy Chief of Staff

Hawkins, “all regular paraprofessional positions” at Prescott, including

Claiborne’s, were RIF’d.” 14

Asserting that RSD’s proclaimed reason for termination, the RIF, was a

pretext for discriminatory discharge, Claiborne repeats her contention that

RSD replaced her with Ashley White, a non-disabled person. For the same

reasons discussed above relative to Claiborne’s prima facie case, this argument

likewise fails to establish pretext. Claiborne additionally maintains that the

RIF is pretextual based on her contention that she was a special education

paraprofessional at Prescott, not a regular paraprofessional, and thus should

not have been subject to the RIF. Given the paucity of record evidence

supportive of this contention, however, we, like the district court, disagree.

Significantly, Claiborne’s RSD Employee Notification Form identifies

her as a “paraprofessional,” and nothing else. And while it appears undisputed

that Claiborne certainly worked with special education students, the Prescott

paraprofessionals classified as “special education paraprofessionals” (for

purposes of the RIF) were only those who were required by federal funding

guidelines to be placed with a single student as a part of his or her

12 For instance, RSD HR employee Brandy Whitfield: “Ms. Collette Perkins was

a special education paraprofessional who worked at Prescott Middle in 2013; she was not laid

off during the 2013 RIF because her position was not eliminated.”

13 Regarding this assessment, RSD Executive Director Lakeisha Robichaux

agreed with Hawkins: “The regular paraprofessional positions were not necessary for the

school to function. Prescott [] could operate without any regular paraprofessionals working

there.”

14 Robichaux similarly testified: “During the RIF at Prescott Middle in 2013, all

regularly paraprofessional positions were eliminated. Ms. Claiborne was laid off because she

was a regular paraprofessional.”

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individualized education plan. Thus, because of these restrictions, special

education paraprofessionals, in the context of a RIF, were considered essential

employees not subject to termination.

In contrast, regular paraprofessionals, like Claiborne, were not subject

to a specialized, individual student assignment. Instead, they could be, as was

Claiborne, responsible in varying capacities for multiple students. Such

regular paraprofessionals, including Claiborne, undoubtedly were valuable

employees, but nonetheless were not considered essential to the school’s

functioning or required for federal funding; thus, all were terminated as part

of the RIF. Notably, Claiborne has put forth no competent evidence to the

contrary. 15 Hence, this pretext argument also fails.

Claiborne’s final pretext argument relative to her discriminatory

discharge claim is that Principal Coats, Tamatha Brown (Prescott’s former

office manager), and Brenda Claiborne (Prescott’s former secretary and

Claiborne’s sister) allegedly lacked advance notice of the reduction in force

prior to Claiborne’s termination. Specifically, she argues that such ignorance

of the RIF creates a genuine dispute of fact as to whether a RIF, as argued by

RSD, actually existed. Considered in the context of the instant matter, we

disagree that such facts provide adequate grounds for a reasonable trier-of-fact

to conclude that RSD was attempting to hide a differing, true motive behind

Claiborne’s termination.

As an initial matter, the RIF in question was not focused solely on, or

ordered by, Prescott personnel. Rather, it was a district-wide reduction,

15 Although declarations provided by Tamatha Brown, the former Prescott office

manager, and Roger Cooper, Claiborne’s former Prescott co-worker, refer to Claiborne as a

“Special Education Paraprofessional,” neither establishes that the declarant had the

necessary personal knowledge of Claiborne’s specific job duties and/or the particular

requirements necessary for classification as a “Special Education Paraprofessional.” Thus,

neither declaration provides competent evidence on that point.

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impacting personnel at all ten of the schools RSD directly ran, and at the

central office, that was determined to be necessary, planned, and implemented

by the RSD Deputy Chief of Staff Hawkins and other executive level RSD staff,

not Principal Coats or any other Prescott personnel. Even so, Coats confirmed

RSD’s assertion that, as of the end of the 2012-2013 school year, enrollment for

the upcoming school year (2013-2014) had decreased. Indeed, the declining

enrollment was one of the reasons Coats decided to resign from RSD as of June

30, 2013, with the end of the May being the last time he was physically present

at Prescott. Moreover, he testified that he had “not much, if any” contact with

individuals at Prescott, or the RSD, after he submitted his resignation in May

2013. Accordingly, it is not apparent from this record that Coats likely would

have known in advance that Claiborne or any other Prescott personnel would

be impacted in June 2013 by a RSD system-wide RIF.

Finally, relative to a purported lack of advance knowledge of the RIF by

the Prescott school secretary and office manager, it is not apparent to the Court

that such non-leadership personnel necessarily would have had advance notice

of a June 2013 RIF. Nor has Claiborne submitted any evidence on this point,

or that RSD’s budgetary concerns were unfounded or otherwise illegitimate;

rather, her position is again one of unhelpful and conclusory speculation. In

any event, Claiborne herself testified that Brenda Claiborne, the school

secretary, also was laid off in June 2013 as a result of the RIF; therefore,

further demonstrating the void of factual support for Claiborne’s position on

this issue. On these facts, then, the district court correctly concluded that no

reasonable basis exists for concluding that the RIF proffered by RSD did not

exist and instead was mere pretext for discrimination.

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III. Retaliatory Discharge Claim: Reasonable Accommodation and Leave

With her third claim, Claiborne additionally argues that she was

unlawfully terminated in retaliation for seeking accommodation under the

ADA for her disability, and for taking leave from work because of that

disability. Retaliation claims asserted pursuant to the ADA also operate under

the McDonnell Douglas framework. See Seaman v. CSPH, Inc., 179 F.3d 297,

301 (5th Cir. 1999). To establish a prima facie case of retaliation, a plaintiff

must establish “(1) engagement in an activity protected by the ADA, (2) an

adverse employment action, and (3) a causal connection between the protected

act and the adverse action.” Id. In retaliation claims, the plaintiff must

ultimately show that the protected activity is the “but for” cause of the adverse

employment action. Id.

The district court again assumed, for purposes of its opinion, that

Claiborne could establish a prima facie case of retaliation and focused instead

on whether Claiborne could show RSD’s proffered reason for termination was

pretext. We agree with the district court’s determination that even if Claiborne

established a prima facie case of retaliatory discharge, she nevertheless still

failed to rebut RSD’s legitimate, nondiscriminatory reason for her termination.

In arguing RSD’s reason is mere pretext, Claiborne again disputes, for

essentially the same reasons previously argued, that a RIF, as described by the

RSD, actually occurred. We likewise find Claiborne’s position on this issue

unsupported and, thus, reject the notion that it is sufficient to preclude

summary judgment in RSD’s favor.

In support of her claim, Claiborne also relies on her contention that

RSD’s HR employee, Brandy Whitfield, told her on the telephone that she was

terminated because she was “at risk.” Comments in the workplace, however,

do not constitute evidence of discrimination unless they are:

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(1) related to the protected class of persons of which the plaintiff is

a member; (2) proximate in time to the complained-of adverse

employment decision; (3) made by an individual with authority

over the employment decision at issue; and (4) related to the

employment decision at issue.

Rubinstein v. Admins. of Tulane Educ. Fund., 218 F.3d 392, 400–01 (5th Cir.

2000) (quotation marks and brackets omitted). When one of these criteria are

not satisfied, the comments are deemed to be “stray remarks” not probative of

retaliation.

Here, Claiborne has offered no evidence that Whitfield had any authority

to determine who would be discharged as a result of the RIF. Although

Whitfield was employed by RSD as a “HR Generalist,” she, RSD Chief of Staff

Hawkins, and Executive Director Robichaux maintain that the RIF decisions

were made district-wide by RSD personnel at administrative levels higher

than Whitfield. Significantly, no evidence to the contrary has been cited by

Claiborne. Thus, even if Whitfield did refer to Claiborne as “at risk,” which is

disputed, 16 we are left to conclude that the comment constitutes little more

than a stray remark and, as such, is not probative of pretext. Accordingly, we

find that the district court did not err in granting RSD’s motion for summary

judgment as to her ADA retaliation claim.

IV. Retaliatory Discharge Claim: Louisiana Workers’ Compensation Benefits

Claiborne’s final claim is that RSD terminated her in retaliation for filing

a workers’ compensation claim, “which is clearly unlawful under Louisiana

law.” See La. Rev. Stat. § 23:1361(B) (“No person shall discharge an employee

from employment because of said employee having asserted a claim for

[workers’ compensation].” To prevail on a retaliation claim, the plaintiff must

16 Whitfield contends that she told Claiborne that she had been terminated

because she was “RIF’d,” not because she was “at risk.”

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establish that filing a workers’ compensation claim was “more probably than

not” the reason for her termination. Chivleatto v. Sportsman’s Cove, Inc., 05-

136, pp. 5-6 (La. Ct. App. 6/28/05); 907 So. 2d 815, 819. The employer may then

offer a legitimate reason for the discharge, which the plaintiff may rebut with

evidence showing the stated reason is a façade for retaliatory termination.

Hansford v. St. Francis Med. Ctr., Inc., 43, 964, p.7 (La. Ct. App. 1/14/09); 999

So. 2d 1238, 1242.

Our discussion of RSD’s RIF applies here, as well, because it constitutes

a legitimate reason for Claiborne’s discharge from employment. In explaining

her decisions relative to the positions to be cut from Prescott’s staff because of

budgetary constraints, RSD Deputy Chief of Staff Hawkins avers that she “did

not know anything about Ms. Claiborne being on worker’s compensation or

anything about an accommodations request.” On the showing made, we agree

with the district court’s determination that Claiborne failed to put forth

sufficient evidence that it was her claim for workers’ compensation benefits

that led to her termination, rather than RSD’s systematic and objective

assessment of the measures necessary to accommodate the budgetary needs of

its schools in the face of declining student enrollment. Indeed, Claiborne offers

little more than the same unsupported contentions regarding her classification

(and resulting termination) as a “regular paraprofessional,” relative to the RIF,

rather than a “special education paraprofessional. Accordingly, we find the

district court likewise correctly granted summary judgment as to this claim.

For the foregoing reasons, we AFFIRM the judgment of the district court.

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