Jennings v. Towers Watson

Case: 19-11028 Document: 00515995120 Page: 1 Date Filed: 08/25/2021

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

August 25, 2021

No. 19-11028 Lyle W. Cayce

Clerk

Christian Jennings,

Plaintiff—Appellant,

versus

Towers Watson, an entity, also known as Willis Towers

Watson P.L.C.,

Defendant—Appellee.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:17-CV-3040

Before King, Higginson, and Wilson, Circuit Judges.

Stephen A. Higginson, Circuit Judge:

Christian Jennings sued her former employer Towers Watson

(“WTW,” also known as Willis Towers Watson), alleging civil conspiracy

under Texas law, a hostile work environment under Title VII of the Civil

Rights Act of 1964 (“Title VII”) and the Americans with Disabilities Act of

1990 (“ADA”), disability discrimination under the ADA, racial

discrimination, and wrongful termination. After both parties moved for

summary judgment, the district court granted WTW’s motion and denied

Jennings’s. Jennings now appeals, and we AFFIRM.

Case: 19-11028 Document: 00515995120 Page: 2 Date Filed: 08/25/2021

No. 19-11028

I.

In May 2016, Jennings was hired by WTW to work as a seasonal

benefits advisor. She had served as a benefits advisor for WTW for each of

the three prior seasons.

On May 24, 2016, during the second day of mandatory training,

Jennings fell and sustained injuries in WTW’s parking lot. A doctor

diagnosed Jennings with left ankle pain and right shin pain the following day.

The doctor cleared Jennings to return to work that day with certain

restrictions which were expected to last until June 1, 2016. These restrictions

included limiting walking to two hours per day and refraining from climbing

stairs.

Jennings did not return to the training, which was held on the second

floor of a building, because she believed that the building did not have an

accessible elevator. The parties dispute whether WTW provided Jennings

access to an elevator she could use to attend the training. Jennings claims that

she asked WTW to have a trainer meet her on the first floor to continue her

training and that this request was denied. Instead, WTW informed Jennings

that she could restart her training on June 6, 2016. Jennings claims that WTW

told her that if she did not report for training on June 6, 2016, she would be

unemployed. On June 6, Jennings restarted, and subsequently completed, her

training.

On June 15, 2016, Jennings’s supervisor, Kim “Bo” Baker, sent an

email to Jennings and several other employees instructing them to call the

“manager-on-duty line” (“MOD line”) and text his cell phone if they were

going to be absent or tardy.

On June 20, 2016, Jennings filed a Charge of Discrimination (the

“First Charge”) with the Equal Employment Opportunity Commission

(“EEOC”), in which she alleged race and disability discrimination, failure to

2

Case: 19-11028 Document: 00515995120 Page: 3 Date Filed: 08/25/2021

No. 19-11028

accommodate her disability, and retaliation. In the First Charge, Jennings

asserted that after being injured on the job and seeing a doctor, her reasonable

accommodation was denied and her start date was changed to June 6, 2016.

According to the First Charge, Jennings was told that she must return to work

by that date regardless of her condition. Jennings further claimed that she was

not paid for two-and-a-half training days she attended in May 2016, and that

she was aware of similarly situated white coworkers who received different

treatment in this regard. 1

On July 6, 2016, Baker issued and documented a verbal warning to

Jennings for purported attendance issues. According to the documented

warning, throughout June and July 2016, Jennings was absent seven times,

tardy twice, left work early twice, and failed to inform Baker that she would

be absent or tardy. The warning advised that Jennings’s failure to correct her

behavior could result in a written warning and possible termination.

Two days later, on July 8, 2016, Baker issued Jennings a written

warning based on additional asserted attendance violations. The written

warning noted Jennings’s prior absences, as well as her absence that day. In

response to the documented warning, Jennings commented that she had been

having computer problems and was being mistreated and treated differently

than other employees.

Four days later, on July 12, 2016, WTW terminated plaintiff “for

insubordination: specifically, her violations of attendance policies and

procedures.”

Jennings filed a second Charge of Discrimination with the EEOC (the

“Second Charge”) two days later, alleging retaliation for filing the First

1

The EEOC issued Jennings a right-to-sue letter on her First Charge in January

2018.

3

Case: 19-11028 Document: 00515995120 Page: 4 Date Filed: 08/25/2021

No. 19-11028

Charge. The EEOC issued Jennings a right-to-sue letter for the Second

Charge in September 2017.

Jennings, proceeding pro se, sued WTW in federal district court in

November 2017, alleging civil conspiracy under Texas law, a hostile work

environment under Title VII and the ADA, disability discrimination under

the ADA, racial discrimination, and wrongful termination.

WTW sought dismissal of Jennings’s civil conspiracy and wrongful

termination claims. A magistrate judge recommended dismissal of the civil

conspiracy claim and advised that Jennings’s wrongful termination claim was

based on her claims of race and disability discrimination, rather than

constituting a freestanding claim. The district court accepted the magistrate

judge’s findings, conclusions, and recommendation and dismissed

Jennings’s civil conspiracy claim. Jennings did not appeal this order.

Jennings eventually moved for summary judgment on her remaining

claims, and WTW subsequently filed its own summary judgment motion.

The magistrate judge recommended denying Jennings’s summary judgment

motion and granting WTW’s. The magistrate judge concluded that Jennings

had failed to exhaust her administrative remedies for her race discrimination,

disability discrimination, and hostile work environment claims. The

magistrate judge additionally reasoned that even if Jennings had exhausted

her administrative remedies, her claims failed as a matter of law because

(1) Jennings’s injury was “not a substantially limiting impairment” under the

ADA as there was no evidence of any permanent injury; (2) Jennings had not

established an “adverse employment action” to maintain her race

discrimination claim; (3) she also had not presented evidence that WTW’s

asserted basis for her firing was pretextual; and (4) she had offered no

evidence that WTW’s “alleged conduct was objectively and subjectively

abusive,” as required to maintain her hostile work environment claim.

4

Case: 19-11028 Document: 00515995120 Page: 5 Date Filed: 08/25/2021

No. 19-11028

The district court accepted the magistrate judge’s findings,

conclusions, and recommendation, granted WTW’s summary judgment

motion, denied Jennings’s, and taxed costs against Jennings. Jennings timely

appealed. The district court denied Jennings leave to appeal in forma

pauperis (“IFP”).

Jennings subsequently moved the district court to alter or amend the

judgment pursuant to Federal Rule of Civil Procedure 59, and the district

court denied the motion. The district court again denied Jennings leave to

proceed IFP. Jennings filed a timely amended notice of appeal from the denial

of her Rule 59 motion.

Our court granted Jennings leave to proceed IFP on appeal, noting

that (1) Jennings arguably exhausted her disability discrimination claim

through her EEOC charges, and (2) “the district court’s determination that

Jennings’s temporary ankle injury failed to establish a disability did not

consider the 2008 amendments to the ADA and subsequent cases.”

II.

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

Renwick v. PNK Charles, L.L.C., 901 F.3d 605, 611 (5th Cir. 2018) (citing

United States ex rel. Farmer v. City of Houston, 523 F.3d 333, 337 (5th Cir.

2008)). “Summary judgment is proper if the pleadings and evidence show

there is no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law.” Hernandez v. Yellow Transp., Inc., 670 F.3d 644,

650 (5th Cir. 2012) (citing Fed. R. Civ. P. 56(a)). In making this

determination, we construe “all facts and evidence in the light most favorable

to the non-moving party.” Moss v. Harris Cnty. Constable Precinct One, 851

F.3d 413, 417 (5th Cir. 2017) (quoting Juino v. Livingston Par. Fire Dist. No.

5, 717 F.3d 431, 433 (5th Cir. 2013)). However, where the non-movant

“would have the burden of proof at trial, that party must point to evidence

5

Case: 19-11028 Document: 00515995120 Page: 6 Date Filed: 08/25/2021

No. 19-11028

supporting its claim that raises a genuine issue of material fact.” Id. (citing

Tran Enters., LLC v. DHL Exp. (USA), Inc., 627 F.3d 1004, 1010 (5th Cir.

2010)). “A pro se litigant’s pleadings are construed liberally.” Butler v.

Porter, 999 F.3d 287, 292 (5th Cir. 2021) (citing Haines v. Kerner, 404 U.S.

519, 520–21 (1972)).

III.

We first consider the district court’s determination that Jennings

failed to administratively exhaust her claims of (1) disability discrimination

and failure to accommodate under the ADA, (2) race discrimination under

Title VII, and (3) a hostile work environment under the ADA and Title VII. 2

We review this determination de novo. Pacheco v. Mineta, 448 F.3d 783, 788

(5th Cir. 2006) (citing Martinez v. Dep’t of U.S. Army, 317 F.3d 511, 512 (5th

Cir. 2003); Randel v. Dep’t of U.S. Navy, 157 F.3d 392, 395 (5th Cir. 1998)).

Before a plaintiff may file suit in federal court under either Title VII

or the ADA, the plaintiff must first exhaust her administrative remedies by

filing a charge of discrimination with the EEOC. Melgar v. T.B. Butler Publ’g

Co., 931 F.3d 375, 378–79 (5th Cir. 2019) (per curiam) (citing Price v.

Southwestern Bell Telephone Co., 687 F.2d 74, 77 (5th Cir. 1982); Dao v.

Auchan Hypermarket, 96 F.3d 787, 789 (5th Cir. 1996); Foster v. Nat’l Bank of

Bossier City, 857 F.2d 1058, 1060 (5th Cir. 1988)). In determining whether a

plaintiff has exhausted a particular claim, “the scope of an EEOC complaint

should be construed liberally.” Patton v. Jacobs Eng’g Grp., Inc., 874 F.3d 437,

443 (5th Cir. 2017) (quoting Pacheco, 448 F.3d at 788). “On the other hand,

2

Jennings argues that the district court erred by failing to consider her wrongful

termination claim in its summary judgment order. However, as the district court had

previously concluded, Jennings’s asserted wrongful termination claim is properly viewed

as part of her race and disability discrimination claims. We therefore decline to consider it

as a freestanding claim.

6

Case: 19-11028 Document: 00515995120 Page: 7 Date Filed: 08/25/2021

No. 19-11028

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. (quoting Pacheco, 448 F.3d 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. (internal quotation marks omitted) (quoting Pacheco,

448 F.3d at 789). “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. (quoting Pacheco,

448 F.3d at 789).

The district court concluded that Jennings failed to exhaust her

disability discrimination and failure to accommodate claims because the First

Charge “expressly constrained her discrimination and retaliation allegations

to May 26, 2016, [] which predated all of the alleged discriminatory actions

alleged in the amended complaint” and the Second Charge was “wholly

devoid of any allegation of race- or disability-based discrimination.”

In this regard, the district court construed the scope of the

investigation that could reasonably be expected to grow out Jennings’s EEOC

charges too narrowly. The First Charge asserted, in pertinent part:

On May 24, 2016, I was injured on the job. On May 25, 2016, I

went to see [a] medical doctor who instructed me to go home.

On May 26, 2016, I requested a reasonable accommodation so

that I could continue training. Rather than engage me in the

interactive process, Respondent laid me off and asked me to

sign a document that would change my start to June 6, 2016. I

was instructed that I must come back to work by that date

whether my injury was better or not.

7

Case: 19-11028 Document: 00515995120 Page: 8 Date Filed: 08/25/2021

No. 19-11028

Jennings’s Second Charge provided: “On July 12, 2016, I was terminated

from my position as a Super Benefit Advisor, in retaliation for filing a charge

of discrimination with EEOC.” Jennings’s operative complaint bases her

disability discrimination and failure-to-accommodate claims on the following

factual allegations: “After Jennings was seriously injured in the employer’s

parking lot on her way back to work no responsible employee seriously

addressed her clearly documented injuries and simply falsely accused her of

malingering and then conspired to discharge her to unlawfully avoid the issue

of her lawfully required accommodations.”

The factual allegations underlying Jennings’s failure-to-accommodate

claim—that after being injured while at work on May 24, 2016, she requested

an accommodation and did not receive it—were asserted in her First Charge.

In support of her disability discrimination claim, Jennings’s complaint alleges

that WTW “falsely accused her of malingering and then conspired to

discharge her” in order to avoid the issue of her requested accommodation.

An investigation covering such facts, as alleged, could reasonably be expected

to grow out of the assertions in Jennings’s EEOC charges, which alleged that

WTW denied Jennings her requested accommodation and later terminated

her in retaliation for filing a charge reporting this incident to the EEOC. We

thus conclude that Jennings properly exhausted her disability discrimination

and failure-to-accommodate claims under the ADA.

The district court did not err, however, in concluding that Jennings

failed to exhaust her race discrimination and hostile work environment

claims. As the basis for her race discrimination claim, Jennings’s complaint

alleges that “4 African-American Teammates on Baker’s team were seated

together in a row, facing away from the other (white and Hispanic)

Teammates on Baker’s team.” It is not reasonable to expect that an

investigation into Jennings’s EEOC charges, which mentioned only her claim

that she was not paid for the training days completed before her injury while

8

Case: 19-11028 Document: 00515995120 Page: 9 Date Filed: 08/25/2021

No. 19-11028

her white colleagues were treated differently, would uncover facts related to

the seating segregation Jennings alleges in her complaint. Nor is it reasonable

to expect that an investigation into Jennings’s EEOC charges would reveal

the harassment Jennings alleges as the basis for her hostile work environment

claim. We therefore conclude that while Jennings did exhaust her disability

discrimination and failure-to-accommodate claims, she failed to exhaust her

claims of race discrimination and a hostile work environment.

IV.

Having determined that Jennings administratively exhausted her

claims of disability discrimination and failure to accommodate under the

ADA, we now consider whether the district court erred in granting summary

judgment to WTW on these claims.

The district court concluded that Jennings’s disability discrimination

and failure-to-accommodate claims failed on the merits because her injury

was not permanent and thus could not be a substantially limiting impairment.

Although the district court did not reach the other elements of Jennings’s

failure-to-accommodate and disability discrimination claims, we may affirm

summary judgment on any basis supported by the record. Thibodeaux v.

Sanofi U.S. Servs., Inc. (In re Taxotere (Docetaxel) Prods. Liab. Litig.), 995 F.3d

384, 388 (5th Cir. 2021).

Jennings claims that WTW failed to accommodate the disability

caused by her leg injuries, in violation of the ADA. To prevail on her failure-

to-accommodate claim, Jennings must show 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.”

Moss v. Harris Cnty. Constable Precinct One, 851 F.3d 413, 417 (5th Cir. 2017)

(quoting Feist v. La., Dep’t of Just., Off. of the Att’y Gen., 730 F.3d 450, 452

9

Case: 19-11028 Document: 00515995120 Page: 10 Date Filed: 08/25/2021

No. 19-11028

(5th Cir. 2013)). As our court noted in granting Jennings leave to proceed

IFP, the district court did not acknowledge the 2008 amendment to the ADA

and subsequent caselaw in reasoning that Jennings’s temporary injury could

not establish a disability under the ADA. We need not determine whether

this was error, however, because even assuming that Jennings satisfied the

required disability showing, Jennings failed to raise a genuine issue of

material fact as to whether WTW reasonably accommodated her resulting

limitations.

In response to Jennings’s injury, WTW told her that she could restart

her training on June 6, 2016, which she did. “Time off, whether paid or

unpaid, can be a reasonable accommodation.” Moss, 851 F.3d at 418 (quoting

Delaval v. PTech Drilling Tubulars, L.L.C., 824 F.3d 476, 481 (5th Cir. 2016)).

Jennings fails to show that WTW’s proposed accommodation, which was

akin to unpaid leave and extended beyond Jennings’s documented one-week

limitations period, was unreasonable. That WTW declined to provide

Jennings’s requested accommodation—to continue her training on the first

floor with a dedicated trainer—does not alter our conclusion. “The ADA

provides a right to reasonable accommodation, not to the employee’s

preferred accommodation.” E.E.O.C. v. Agro Distrib., LLC, 555 F.3d 462,

471 (5th Cir. 2009) (citing Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 457

(6th Cir. 2004)).

Jennings also asserts a claim of disability discrimination based on

WTW’s actions culminating in her July 12, 2016 termination. To make a

prima facie case of disability discrimination under the ADA, Jennings must

establish that “(1) [she] has a disability or was regarded as disabled, (2) [she]

was qualified for the job, and (3) [she] was subject to an adverse employment

decision on account of [her] disability.” Caldwell v. KHOU-TV, 850 F.3d

237, 241 & n.4 (5th Cir. 2017) (citing Rodriguez v. Eli Lilly & Co., 820 F.3d

759, 764 (5th Cir. 2016)). Jennings bases her claim of disability discrimination

10

Case: 19-11028 Document: 00515995120 Page: 11 Date Filed: 08/25/2021

No. 19-11028

on her purported actual disability, rather than an allegation that WTW

regarded her as disabled. “In an ADA case, the relevant time for assessing

the existence of a disability is the time of the adverse employment action.”

E.E.O.C. v. Chevron Phillips Chem. Co., 570 F.3d 606, 618 (5th Cir. 2009)

(citing Samuels v. Kansas City Mo. Sch. Dist., 437 F.3d 797,802 (8th Cir.

2006); Swanson v. Univ. of Cincinnati, 268 F.3d 307, 316 (6th Cir. 2001); Cash

v. Smith, 231 F.3d 1301, 1306 (11th Cir. 2000)).

The adverse employment action relevant to Jennings’s claim is her

July 12, 2016 termination. 3 The only evidence of Jennings’s medical

diagnosis in the record indicates that her limitations were expected to last

until June 1, 2016. Jennings conceded in her deposition testimony that she

did not submit any evidence of diagnosed limitations lasting beyond June 1,

2016. Because Jennings has not pointed to evidence showing that she had a

disability at the time of her July 12 termination, she cannot establish a prima

facie claim of disability discrimination. See Caldwell, 850 F.3d at 241; Chevron

Phillips Chem Co., 570 F.3d at 618. Jennings has not raised a genuine issue of

material fact as to her failure-to-accommodate and disability discrimination

claims, and WTW is entitled to judgment as a matter of law. See Moss, 851

F.3d at 417. We thus affirm the district court’s grant of summary judgment

to WTW on these claims and likewise affirm the district court’s denial of

summary judgment to Jennings.

3

Jennings argues that WTW’s decision to have her restart training on June 6 was

also an adverse employment action. To the contrary, under the circumstances, this decision

was a reasonable response to her limitations and not an adverse employment action. See

Austgen v. Allied Barton Sec. Servs. L.L.C., 815 F. App’x 772, 775 (5th Cir. 2020) (per

curiam).

11

Case: 19-11028 Document: 00515995120 Page: 12 Date Filed: 08/25/2021

No. 19-11028

V.

Jennings also appeals the district court’s denial of her motion to alter

or amend the judgment pursuant to Federal Rule of Civil Procedure 59(e).

We review for abuse of discretion. Templet v. HydroChem Inc., 367 F.3d 473,

477 (5th Cir. 2004) (citing Ford Motor Credit Co. v. Bright, 34 F.3d 322, 324

(5th Cir. 1994)). “A Rule 59(e) motion ‘calls into question the correctness of

a judgment.’” Id. at 478 (quoting In re Transtexas Gas Corp., 303 F.3d 571,

581 (5th Cir. 2002)). Granting such a motion is appropriate (1) to correct a

manifest error of law or fact, (2) where the movant presents newly discovered

evidence that was previously unavailable, or (3) where there has been an

intervening change in the controlling law. Demahy v. Schwarz Pharma, Inc.,

702 F.3d 177, 182 (5th Cir. 2012) (citing Schiller v. Physicians Res. Grp. Inc.,

342 F.3d 563, 567 (5th Cir. 2003)). Jennings’s Rule 59(e) motion presented

neither an error that undermined the correctness of the judgment nor newly

discovered evidence nor an intervening change in law. We thus conclude that

the district court did not abuse its discretion in denying Jennings’s motion to

alter or amend the judgment.

VI.

Jennings also challenges the district court’s decision to tax costs

against her. We review a decision to tax costs for abuse of discretion. Moore

v. McDonald, 30 F.3d 616, 621 (5th Cir. 1994). Even where a litigant is granted

IFP status, 28 U.S.C. § 1915(f)(1) provides that “[j]udgment may be

rendered for costs at the conclusion of the suit or action as in other

proceedings.” 28 U.S.C. § 1915(f)(1). A frivolous lawsuit is not a necessary

condition to taxing costs against an IFP litigant. See Lay v. Anderson, 837 F.2d

231, 232 (5th Cir. 1988). Jennings has not shown that the district court abused

its discretion in taxing costs against her.

12

Case: 19-11028 Document: 00515995120 Page: 13 Date Filed: 08/25/2021

No. 19-11028

VII.

For the foregoing reasons, we AFFIRM the district court’s

judgments (1) granting WTW’s motion for summary judgment, denying

Jennings’s motion for summary judgment, and taxing costs against Jennings;

and (2) denying Jennings’s motion to alter or amend the judgment.

13