Timothy Patton v. Jacobs Engineering Group, Inc, e

Case: 16-30879 Document: 00514209175 Page: 1 Date Filed: 10/24/2017

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 16-30879 FILED

October 24, 2017

TIMOTHY PATTON, Lyle W. Cayce

Clerk

Plaintiff–Appellant,

v.

JACOBS ENGINEERING GROUP, INCORPORATED; TALASCEND, L.L.C.,

Defendants–Appellees.

Appeal from the United States District Court

for the Middle District of Louisiana

ON PETITION FOR REHEARING

Before KING, JOLLY, and PRADO, Circuit Judges.

EDWARD C. PRADO, Circuit Judge:

Treating Plaintiff–Appellant Timothy Patton’s petition for rehearing en

banc as a petition for panel rehearing, the petition for panel rehearing is

DENIED. The petition for rehearing en banc is also DENIED. The prior

opinion, Patton v. Jacobs Eng’g Grp., Inc., 863 F.3d 419 (5th Cir. 2017), is

withdrawn, and the following opinion is substituted:

Patton brought this American Disabilities Act (“ADA”) case against

Jacobs Engineering Group Inc. (“Jacobs”) and Talascend, LLC (“Talascend”).

The district court granted summary judgment against Patton on his failure to

accommodate and hostile work environment claims. For the reasons stated

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No. 16-30879

below, we AFFIRM.

I. BACKGROUND

Patton designs electrical and instrumentation systems. He also has an

obvious stutter. Talascend is a staffing agency which furnishes contract

employees, including engineers and designers, to its clients. Jacobs, an

engineering firm, is one of Talascend’s clients. Patton has been an employee of

Talascend since October 2012, when he was assigned to work at Jacobs’ facility

in Baton Rouge, Louisiana. Around the time he was hired, Patton told Emily

Wimbley, a Talascend recruiter, about his stuttering and anxiety problems,

which he said “all go[] together.”

Patton alleges that his coworkers at Jacobs harassed him on account of

his stutter. For example, coworkers would call him names such as lawnmower

and bush hog (a type of lawnmower). Additionally, coworkers who passed him

in the hallway or met him on the elevator would mock his stuttering, and

coworkers who sat near him would mock him and make loud noises right

behind him. Even his supervisor, Greg Guillory, allegedly mocked him at a

department-wide meeting in front of fifty coworkers. Patton testified that he

complained about this harassment to Guillory and Wimbley; in addition, he

testified that he called and left a message with Talascend’s human resources

department, but that this call was never returned.

Patton also made a number of complaints about noise while he worked

at Jacobs. According to Patton, the work environment at Jacobs was full of

“loud laughter, banging, [and] horseplay.” He complained to Guillory three

times about the noise in his work space and asked Guillory “to move [him] to

an area that was quiet so that [his] nerves would not affect [his] stuttering.”

Patton also discussed the noise problem with Wimbley at Talascend. Talascend

offered to reassign Patton to another client and also raised the issue with

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Guillory. But Patton continued working at Jacobs and by all accounts

performed his job well.

According to Patton, the harassment and excessive noise at Jacobs

caused him to experience severe anxiety. He emailed Bruce Kistrup, a lead

engineer, four times about taking off work due to his stress. As a result of this

stress, Patton suffered a panic attack while driving and got into a car accident

on February 28, 2014. Patton did not return to work at Jacobs after this

accident.

On May 7, 2014, Patton filed a charge of discrimination with the

Louisiana Commission on Human Rights (“LCHR”) and the U.S. Equal

Employment Opportunity Commission (“EEOC”). 1 He asserted that he was

harassed on account of his disability. Specifically, Patton alleged the following

facts:

I was subjected to psychological violence. People made habitual

efforts to talk repetitively in an unnatural, intensified loud voice

while near me. I was subjected to name calling such as “bush hog”,

“how pathetic” and “don’t fit in.” Several people would mock my

stuttering while looking directly at me. On one occasion Greg

Guillory while speaking in a meeting began to stutter while

looking directly at me. I have been excluded from work related

lunches/dinners, left out of the communication loop and meeting

announcements. I complained on several occasions to management

from both Jacobs and Talascend but nothing was done. On

February 28, 2014 I was involved in an accident and became

stressed to the point that I am currently out on a medical leave.

Patton also filed an intake questionnaire on May 7, 2014. In the intake

questionnaire, Patton clarified that his disability consisted of stuttering,

anxiety, and noise sensitivity. He also stated that he requested changes or

assistance because of his disability but that his employer did not make any

Although Patton filed the charge of discrimination with both the LCHR and the

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EEOC, it appears that only the EEOC investigated the charge.

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actual changes in response to his requests. Patton later amended his charge of

discrimination on September 30, 2014, to add a claim of sex discrimination.

During the EEOC investigation, Talascend and Jacobs submitted

position statements in which they disputed Patton’s allegations of

discrimination. These position statements focused on the harassment

allegations, though Jacobs also responded to the allegation that it failed to

accommodate Patton’s disability. The EEOC issued a notice of right to sue

letter on November 24, 2014.

Patton filed suit in Louisiana state court on February 6, 2015. He

brought four claims against Jacobs and Talascend: (1) intentional infliction of

emotional distress; (2) negligent infliction of emotional distress; (3) hostile

work environment in violation of the ADA; and (4) failure to accommodate in

violation of the ADA. Shortly after the defendants removed the case to federal

court, Patton’s negligent infliction of emotional distress claim was dismissed.

Jacobs and Talascend moved for summary judgment in May 2016.

The district court granted summary judgment in favor of both

defendants on all claims. First, the district court held that Patton failed to

administratively exhaust his failure to accommodate claim. In the alternative,

the district court held that Patton failed to put forth sufficient evidence

showing that the defendants were aware of his disability. Second, the district

court held that Patton failed to introduce sufficient evidence of a hostile work

environment. The district court also found that Patton failed to take advantage

of the complaint procedures in either defendant’s anti-harassment policy.

Finally, the district court held that Patton failed to put forth sufficient

evidence in support of his intentional infliction of emotional distress claim.

This appeal followed.

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II. DISCUSSION

On appeal, Patton argues that the district court erred in granting

summary judgment against him on his failure to accommodate and hostile

work environment claims. Patton does not brief his intentional infliction of

emotional distress claim; accordingly, we confine our review to his ADA claims.

A. Standard of Review

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

judgment, applying the same standard as the district court.’” Feist v. La., Dep’t

of Justice, Office of the Att’y Gen., 730 F.3d 450, 452 (5th Cir. 2013) (quoting

Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 414 (5th Cir. 2003)).

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 of material fact

exists if the “evidence is such that a reasonable jury could return a verdict for

the nonmoving party.” Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d 396,

400 (5th Cir. 2013) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986)). The Court “must view all facts and evidence in the light most favorable

to the non-moving party.” Feist, 730 F.3d at 452 (quoting Juino v. Livingston

Par. Fire Dist. No. 5, 717 F.3d 431, 433 (5th Cir. 2013)).

B. Analysis

1. Failure to Accommodate

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

qualified individual on the basis of disability” regarding the “terms, conditions,

and privileges of employment.” 42 U.S.C. § 12112(a). Discrimination includes

failure to “mak[e] reasonable accommodations to the known physical or mental

limitations of an otherwise qualified individual with a disability . . . , unless

[the employer] can demonstrate that the accommodation would impose an

undue hardship on the operation of [its] business.” Id. § 12112(b)(5)(A). To

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establish a failure to accommodate claim, the plaintiff must show that: “(1) the

plaintiff is a ‘qualified individual with a disability’; (2) the disability and its

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

employer failed to make ‘reasonable accommodations’ for such known

limitations.” Feist, 730 F.3d at 452 (quoting 42 U.S.C. § 12112(b)(5)(A)).

Patton asserts that he is disabled on account of childhood onset fluency

disorder. He contends that “the noisy office environment heightened his

anxiety, caused [him] to suffer panic attacks and worsened his stuttering over

time.” But according to Patton, Jacobs and Talascend “did nothing” to address

the noise issue. Eventually, Patton’s anxiety caused him to miss work and get

into a car accident.

Neither Jacobs nor Talascend contests that Patton is a qualified

individual with a disability; thus, we assume without deciding that Patton has

proved the first element of his failure to accommodate claim. But Jacobs and

Talascend dispute the other two elements—whether they knew of his disability

and whether they failed to accommodate it. In addition, Jacobs and Talascend

argue that Patton failed to administratively exhaust his failure to

accommodate claim, and Talascend argues that Patton’s charge was not timely.

We address the exhaustion argument first.

a. Administrative exhaustion

Before a plaintiff may file her ADA claim in federal court, she must

exhaust her administrative remedies. See Dao v. Auchan Hypermarket, 96 F.3d

787, 789 (5th Cir. 1996) (per curiam) (noting that the ADA incorporates by

reference Title VII’s administrative procedures). Specifically, the plaintiff must

file a charge of discrimination with the EEOC within 180 days of “the alleged

unlawful employment practice,” or within 300 days if the charge is filed with a

state or local agency—here, the LCHR. 42 U.S.C. § 2000e-5(e)(1).

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In determining whether a plaintiff has exhausted a particular claim, we

have noted that “the scope of an EEOC complaint should be construed

liberally.” Pacheco v. Mineta, 448 F.3d 783, 788 (5th Cir. 2006). “On the other

hand, a primary purpose of Title VII is to trigger the investigatory and

conciliatory procedures of the EEOC, in attempt to achieve non-judicial

resolution of employment discrimination claims.” Id. at 788–89. To balance

these considerations, “this court interprets what is properly embraced in

review of a Title-VII claim somewhat broadly, not solely by the scope of the

administrative charge itself, but by the scope of the EEOC investigation which

‘can reasonably be expected to grow out of the charge of discrimination.’” Id. at

789 (quoting Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir.

1970)). “We engage in fact-intensive analysis of the statement given by the

plaintiff in the administrative charge, and look slightly beyond its four corners,

to its substance rather than its label.” Id.

The district court held that Patton failed to exhaust his failure to

accommodate claim by not including it in the charge. As the district court

found, the formal charge does not suggest that either Talascend or Jacobs

failed to accommodate Patton’s disability. But Patton did state in the intake

questionnaire that he requested changes or assistance because of his disability,

and that Jacobs and Talascend “brushed [him] off” and made “no actual

changes.”

Patton argues that the intake questionnaire should be considered a

charge under Federal Express Corp. v. Holowecki, 552 U.S. 389 (2008). There,

the Court recognized that an intake questionnaire may constitute a charge

under the Age Discrimination in Employment Act. The Court specified that “a

filing is to be deemed a charge” if it both satisfies the regulatory requirements

of a charge and may be “reasonably construed as a request for the agency to

take remedial action to protect the employee’s rights or otherwise settle a

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dispute between the employer and the employee.” Id. at 402. Patton’s intake

questionnaire, however, is not verified as required by EEOC regulations. 29

C.F.R. § 1601.7. Thus, the questionnaire alone cannot be deemed a charge.

Nevertheless, if the intake questionnaire is considered part of the formal

charge Patton did file, the scope of the EEOC investigation growing out of the

charge could reasonably be expected to include a failure to accommodate claim.

We find that Patton’s intake questionnaire should be construed as part of the

EEOC charge. Patton filed his intake questionnaire together with his formal

charge of discrimination on May 7, 2014. The charge form directs complainants

to “attach extra sheet(s)” “[i]f additional paper is needed.” Moreover, the EEOC

investigation clearly encompassed Patton’s failure to accommodate claim. In

its position statement, Jacobs stated that “Patton never made any request for

reasonable accommodation from Jacobs.” The position statement also responds

to a question—presumably posed by the EEOC—about Patton’s request for a

reasonable accommodation. Thus, Patton did in fact “trigger the investigatory

and conciliatory procedures of the EEOC” regarding his failure to

accommodate claim. Pacheco, 448 F.3d at 788–89. Construing the scope of

Patton’s charge liberally, we hold that his failure to accommodate claim could

reasonably be expected to—and in fact did—grow out of his charge of

discrimination.

b. Knowledge of disability

In addition to finding Patton’s failure to accommodate claim

unexhausted, the district court granted summary judgment on the alternative

ground that Patton failed to put forth sufficient evidence showing that either

Jacobs or Talascend knew of his disability. “Under the ADA, an actionable

disability means, in relevant part, a physical or mental impairment that

substantially limits one or more of the major life activities of an individual.”

Taylor v. Principal Fin. Grp., 93 F.3d 155, 163 (5th Cir. 1996) (footnote

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omitted) (citing 42 U.S.C. § 12102). “This court has recognized that ‘where the

disability, resulting limitations, and necessary reasonable accommodations,

are not open, obvious, and apparent to the employer, the initial burden rests

primarily upon the employee . . . to specifically identify the disability and

resulting limitations, and to suggest the reasonable accommodations.’” EEOC

v. Chevron Phillips Chem. Co., LP, 570 F.3d 606, 621 (5th Cir. 2009) (omission

in original) (quoting Taylor, 93 F.3d at 165). Although the employee need not

utter any magic words, she “must explain that the adjustment in working

conditions or duties she is seeking is for a medical condition-related reason.”

Id.

We agree with the district court that there is insufficient evidence to

prove either Jacobs’ or Talascend’s knowledge of Patton’s disability. Of course,

Patton’s stutter was obvious. And it is clear that Patton complained about

noise on several occasions. But Patton must show that the defendants

attributed Patton’s limitation—sensitivity to noise—to a physical or mental

impairment; in other words, they must have known that Patton sought a

quieter work environment because of a medical condition.

The only evidence supporting Talascend’s knowledge of Patton’s

disability and resulting limitation is Patton’s testimony that he told Emily

Wimbley that his stuttering and anxiety problems “all go[] together.” He also

told her “that at a previous job [he] was sensitive to [noise].” These statements

are too vague to show that Patton identified his sensitivity to noise as a

limitation resulting from a disability. 2

Whether sufficient evidence supports Jacobs’ knowledge of Patton’s

disability and resulting limitation is a closer question. Patton testified that he

2Because we dispose of Patton’s failure to accommodate claim against Talascend on

the merits, we need not address Talascend’s alternative argument that Patton’s EEOC

charge was untimely.

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asked Jacobs “to move [him] to a quiet area so that [his] stuttering—[his]

nerves would decrease, [his] nervous system problems would stop causing [his]

increase in stuttering.” It is reasonable to infer that based on this request,

Jacobs was on notice that noise aggravated Patton’s anxiety, which in turn

aggravated his stuttering. But this is not enough; a jury must be able to infer

Jacobs’ knowledge of the “limitations experienced by the employee as a result

of [his] disability.” Taylor, 93 F.3d at 164 (emphasis added). In the case of a

mental disability such as childhood onset fluency disorder, specificity in

attributing a work limitation to a disability is particularly important. See id.

at 164–65. Patton did not tell Jacobs that his disability caused his noise

sensitivity, nor was this causal relationship obvious. Accordingly, as the

district court held, Patton “has not created a genuine dispute of fact that he

adequately linked office noise to an aggravation of his disability, which in turn

gave rise to a workplace limitation for which [Jacobs] should have been aware.”

The district court did not err in granting summary judgment against Patton

on his failure to accommodate claim.

2. Hostile Work Environment

To establish a hostile work environment claim under the ADA, a plaintiff

must show:

(1) that she belongs to a protected group; (2) that she was subjected

to unwelcome harassment; (3) that the harassment complained of

was based on her disability or disabilities; (4) that the harassment

complained of affected a term, condition, or privilege of

employment; and (5) that the employer knew or should have

known of the harassment and failed to take prompt, remedial

action.

Flowers v. S. Reg’l Physician Servs. Inc., 247 F.3d 229, 235–36 (5th Cir. 2001)

(quoting McConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 558, 563 (5th Cir.

1998)). “Harassment affects a ‘term, condition, or privilege of employment’ if it

is ‘sufficiently severe or pervasive to alter the conditions of the victim’s

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employment and create an abusive working environment.’” Hernandez v.

Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012) (quoting Ramsey v.

Henderson, 286 F.3d 264, 268 (5th Cir. 2002)). In determining whether the

work environment is hostile, this Court examines the totality of circumstances,

including “the frequency of the discriminatory conduct; its severity; whether it

is physically threatening or humiliating, or a mere offensive utterance; and

whether it unreasonably interferes with an employee’s work performance.” Id.

(quoting Ramsey, 286 F.3d at 268). But “simple teasing, offhand comments,

and isolated incidents (unless extremely serious)” do not suffice to alter the

terms and conditions of employment. Faragher v. City of Boca Raton, 524 U.S.

775, 788 (1998) (citation and internal quotation marks omitted).

The district court held that Patton failed to satisfy the fourth and fifth

elements of a hostile work environment claim. On appeal, Patton emphasizes

that the “vicious cycle of mental and physical abuse” he experienced while at

Jacobs created a “hostile and abusive” work environment. 3 Jacobs disputes

whether this abuse actually occurred, noting that none of Patton’s coworkers

corroborated his account and that Patton did not complain of any harassment

while he worked at Jacobs. Jacobs also argues that Patton has only pointed to

a few instances of teasing and offhand comments, none of which affected

Patton’s work performance and which do not meet the Fifth Circuit’s high bar

for a hostile work environment.

Viewing the record in the light most favorable to Patton, a jury could find

that the harassment Patton experienced at Jacobs was sufficiently severe or

pervasive to alter the terms and conditions of his employment. There is

3 Patton also seems to contend that general office noise at Jacobs contributed to the

hostile work environment. As the district court noted, however, a noisy office environment

does not support Patton’s ADA claim because the noise was not directed at Patton. Thus, the

noisy office environment was not “based on” Patton’s disability. Flowers, 247 F.3d at 235

(quoting McCarthy, 131 F.3d at 563).

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evidence that the alleged harassment was pervasive; for example, Patton

testified that “there were a lot of names by quite a few people over an extended

period of time,” and that he was called names like bush hog and lawnmower

every week. Patton was not as clear about how often his coworkers mocked his

stuttering, but his testimony suggests that he was repeatedly mocked by

various individuals—in the hallway, on the elevator, and around his desk. This

conduct rises above simple teasing and offhand comments. Cf. EEOC v. WC&M

Enters., Inc., 496 F.3d 393, 400–01 (5th Cir. 2007) (holding that “a long-term

pattern of ridicule” based on the plaintiff’s national origin and religion,

including name-calling and mocking, sufficed to establish a hostile work

environment claim under Title VII). Patton also testified about a particularly

severe incident in which his supervisor, Greg Guillory, mocked him at a

department-wide meeting. Furthermore, it is reasonable to infer that this

harassment contributed to the anxiety that forced Patton to miss work, thus

interfering with his work performance. Based on these facts, Patton has put

forth sufficient evidence in support of the fourth element of a hostile work

environment claim.

Nevertheless, because Patton did not challenge on appeal the district

court’s determination that he “unreasonably failed to avail himself of the

procedures set forth in the anti-harassment policies maintained by both

defendants,” see Hockman v. Westward Commc’ns, LLC, 407 F.3d 317, 330 (5th

Cir. 2004), he has forfeited his objection to this determination. Therefore, we

affirm the district court’s determination that Patton failed to show that the

defendants knew or should have known of the harassment and failed to take

prompt, remedial action. The district court did not err in granting summary

judgment against Patton on his hostile work environment claim.

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III. CONCLUSION

For the foregoing reasons, the district court’s grant of summary

judgment against Patton is AFFIRMED.

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