Houston v. TX Dept of Agri

Case: 20-20591 Document: 00516082876 Page: 1 Date Filed: 11/05/2021

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

November 5, 2021

No. 20-20591

Lyle W. Cayce

Clerk

Ida Johnson Houston,

Plaintiff—Appellant,

versus

Texas Department of Agriculture; Commissioner Sid

Miller, in his official capacity,

Defendants—Appellees.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:18-CV-4431

Before King, Higginson, and Wilson, Circuit Judges.

Stephen A. Higginson, Circuit Judge:

Ida Houston, a former state employee at the Texas Department of

Agriculture (“TDA”), alleges that she was fired in retaliation for exercising

her rights under the Family and Medical Leave Act (“FMLA”) and,

similarly, discriminated against under the Rehabilitation Act. Houston

suffers from lupus and other illnesses.

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The district court granted TDA’s motion for summary judgment,1

concluding that TDA had established legitimate, nondiscriminatory reasons

for Houston’s termination and that Houston failed to raise a disputed

material fact showing that those reasons were pretextual. 2 Houston appeals.

I.

The district court recounted the facts as follows, which are largely

undisputed on appeal:

Ida Johnson Houston began working as a Program Review

Specialist for Defendant Texas Department of Agriculture

(“TDA”) in June 2012. Houston worked in TDA’s Food and

Nutrition Division and audited participants in the Child and

Adult Food Care Program and Summer Food Service Program,

both of which receive federal funding. Houston’s

responsibilities required on-site inspections to observe and

confirm that the sites were complying with state and federal

regulations. Houston suffers from lupus, anemia, and other

illnesses, requiring her to be absent from work and sometimes

take leave under the Family Medical and Leave Act [sic]

(“FMLA”).

In January 2016, Houston returned to her position after a long-

term medical leave and submitted a request for

accommodations permitting her to telework and to work a

compressed workweek. TDA granted the request in part,

allowing Houston to work four ten-hour days. TDA denied the

telework request because Houston’s duties could not be

performed solely from home due to the on-site inspections;

TDA’s strict policy concerning telework, which was updated

in 2015, grants such requests only in “extraordinary

1

Houston v. Tex. Dep’t of Agric., No. CV H-18-4431, 2020 WL 6700615 (S.D. Tex.

Oct. 12, 2020).

2

Houston, 2020 WL 6700615, at *7—8.

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circumstance[s]”; and Houston needed training to improve

performance. According to Houston, she was not given a

reason for the denial, and she also maintains that she had been

allowed to telework from 2012 until she took medical leave in

2015.

In August 2016, Houston’s manager, Karen Cade, gave

Houston a written warning for “failure to meet expectations,”

a “pattern of excessive absenteeism and tardiness,”

“inadequate job performance,” and insubordination. TDA

gave Houston the opportunity to provide a rebuttal, which she

provided, and TDA amended the warning to delete some of the

absences and tardy arrivals. In October 2016, Cade gave

Houston another written warning for leaving work early and

arriving late; accruing overtime without supervisor approval;

late arrivals to sites being audited; and performance issues

including failure to submit accurate and timely administrative

reviews, failure to follow TDA’s travel policy, and

insubordination. Houston again was given the opportunity to

provide a rebuttal to the warning, but she provided none.

TDA gave Houston another written warning in April 2017

because of her failure to improve on the issues documented in

the previous warnings. The April warning listed dates of

absences and tardy arrivals to both the office and site visits, as

well as late or incomplete assignments, and notified Houston

that she was being placed on a ninety-day probation period,

ending July 27, 2017, during which she needed to improve her

performance or face discipline up to and including termination.

Houston provided a rebuttal to this warning, but no

amendments were made. About mid-way through the

probation period, on June 7, 2017, Cade gave to Houston a

written progress report on her probation documenting that

Houston so far had “failed to meet the expectation specified in

the written warning-probation memorandum.” Houston again

provided a rebuttal to this memo, but no changes were made.

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When the probationary period ended, TDA informed Houston

that management was assessing her progress. Cynthia

Mendoza, Administrator for Human Resources; Angela Olige,

Assistant Commissioner for Food and Nutrition; Susan

Maldonado, Deputy General Counsel; and Tracy Mueck,

Administrator for Food and Nutrition, evaluated Houston’s

progress and ultimately decided to discharge Houston because

of her failure to correct her performance deficiencies over the

course of her probation, excessive absenteeism and tardiness

unrelated to protected FMLA leave, and her insubordination.

On August 11, 2017, Mendoza directed Mueck to prepare a

termination memo to be given to Houston on August 14. But

Houston called in sick on August 14 and took FMLA leave from

August 14-16 for her illness. Her termination notice was thus

delayed until August 17 when she returned to work.3

These facts are derived from the uncontroverted documents

submitted by both parties.4

Houston commenced this suit against the TDA asserting various

employment, disability, and discrimination claims. Following TDA’s motion

to dismiss, Houston filed a first amended complaint—the operative

complaint here—adding defendant Commissioner Sid Miller, sued in his

official capacity, and adding a disability discrimination claim under the

3

Houston, 2020 WL 6700615, at *1–2.

4

These include all of the written documentation of Houston’s performance

evaluations: the August 2016 first written warning, rebuttal, and October 3, 2016

amendment, the October 27, 2016 written warning, the April 27, 2017 written probation

warning and rebuttal, the June 7, 2017 probation follow up and rebuttal, and the internal

emails and assessments of Houston following the end of her 90-day probationary period,

prior to her August 17, 2017 termination.

4

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Rehabilitation Act. The district court granted in part and denied in part the

defendants’ renewed motion to dismiss. 5

On June 12, 2020, the defendants moved for summary judgment on

Houston’s remaining two claims: (1) her retaliation claim under the FMLA,

29 U.S.C. § 2601 et seq., and (2) her discrimination claim under Section 504

of the Rehabilitation Act, 29 U.S.C. § 701, et seq. On October 12, 2020, the

district court granted the motion, dismissed Houston’s claims, and entered

final judgment against Houston. On November 12, 2020, Houston timely

filed her notice of appeal of the summary judgment order.

II.

This court “review[s] a grant of summary judgment de novo, applying

the same standard as did the district court.” Wheat v. Fla. Par. Juv. Just.

Comm’n, 811 F.3d 702, 705 (5th Cir. 2016). 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 as to a material fact exists when, after considering

the pleadings, depositions, answers to interrogatories, admissions on file, and

affidavits, a court determines that the evidence is such that a reasonable jury

could return a verdict for the party opposing the motion.” Ion v. Chevron

USA, Inc., 731 F.3d 379, 389 (5th Cir. 2013). All facts and evidence are

5

The defendants moved to dismiss Houston’s Title VII and ADA claims as time-

barred and to dismiss the FMLA claims as barred on sovereign immunity grounds, which

Houston opposed. The district court granted the motion in part, dismissing the Title VII

and ADA claims as time-barred, and dismissing the FMLA claims for monetary relief. But,

under Ex Parte Young, 209 U.S. 123 (1908), the district court permitted the claims for

reinstatement or other prospective relief to go forward. The district court denied the

motion as to the Section 504 claim under the Rehabilitation Act. None of these rulings is

at issue in this appeal.

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construed “in the light most favorable to the nonmoving party,” and “a court

must draw all reasonable inferences in favor of the nonmoving party and may

not make credibility determinations or weigh the evidence.” Id.

“Once the moving party has initially shown ‘that there is an absence

of evidence to support the non-moving party’s cause,’ the non-movant must

come forward with ‘specific facts’ showing a genuine factual issue for trial.”

TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002)

(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986) and Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). “Summary

judgment cannot be defeated through ‘[c]onclusional allegations and denials,

speculation, improbable inferences, unsubstantiated assertions, and legalistic

argumentation.’” Acker v. Gen. Motors, L.L.C., 853 F.3d 784, 788 (5th Cir.

2017) (alteration in original) (quoting Oliver v. Scott, 276 F.3d 736, 744 (5th

Cir. 2002)).

III.

Houston appeals only the district court’s order granting summary

judgment to defendants on her FMLA and Rehabilitation Act claims.

Houston primarily argues that her termination was retaliatory for taking

FMLA leave. Houston concedes that her Rehabilitation Act claim is

contingent on the success of her FMLA retaliation claim and whether she

satisfied her burden to show a dispute of material fact regarding whether

TDA’s stated reasons for termination were pretextual.

Retaliation claims under the FMLA are analyzed under the McDonnell

Douglas burden-shifting framework. Wheat, 811 F.3d at 705. Under that

framework, the plaintiff must first establish a prima facie retaliation case by

showing three elements: “1) he was protected under the FMLA; 2) he

suffered an adverse employment action; and 3) he was treated less favorably

than an employee who had not requested leave under the FMLA or the

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adverse decision was made because he sought protection under the FMLA.”

Acker, 853 F.3d at 790 (emphasis added) (quoting Mauder v. Metro. Transit

Auth. of Harris Cnty., 446 F.3d 574, 583 (5th Cir. 2006)). If the plaintiff

establishes a prima facie case, then the burden shifts to the defendant to

“articulate a legitimate, non-discriminatory reason for the adverse

employment action.” Richardson v. Monitronics Int’l, Inc., 434 F.3d 327, 333

(5th Cir. 2005). In the third step of the McDonnell Douglas framework, the

burden shifts back to the plaintiff to “show by a preponderance of the

evidence” that the defendant’s reason is a pretext for retaliation. Id.

The district court concluded that, “given the relatively low threshold

to establish a prima facie case, Houston has minimally satisfied her burden.”

See also Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996)

(“[T]o establish a prima facie case, a plaintiff need only make a very minimal

showing.”) (alteration in original). Upon review, we assume—but do not

decide—that Houston has established a prima facie case of discrimination

under the FMLA.

Pursuant to the second step of the McDonnell Douglas framework,

TDA has asserted its “legitimate, non-discriminatory reason[s],”

Richardson, 434 F.3d at 333, for terminating Houston’s employment were

“based on three written warnings, the lack of improvement of performance

during the probation period, and recent poor performance and

insubordination.”

Primarily, the parties in this matter dispute the third step of the

McDonnell Douglas framework: whether TDA’s reasons for firing Houston

were pretext for retaliation because Houston sought protection under the

FMLA. With respect to this step, Houston argues the district court

erroneously granted summary judgment because a reasonable juror could

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conclude that her termination was actually retaliatory based on taking

disability-based FMLA leave.

Houston argues on appeal that disputes of material fact do exist as to:

(1) TDA’s stated reasons for her termination; (2) TDA’s deviation from its

written policies; and (3) TDA’s refusal to allow her to telework as a

reasonable accommodation for her lupus, thereby “set[ting] her up for

failure.” She also argues that her supervisor’s comments suggesting that she

find a new job were erroneously dismissed as “stray remarks” by the district

court.

Houston’s first argument is unavailing. While the August 17

termination memo does not include any reasons for Houston’s termination,

TDA’s reasons for terminating Houston were nonetheless

contemporaneously documented, especially during the probationary period

leading up to her termination.6 These include the written warnings from

August 2016 (amended in October 2016) and the probationary warning in

April 2017. Specifically, as to Houston’s work performance, this also

included an August 3, 2017 email with a “Chart of Progress” related to

Houston’s specific work assignments during her probationary period, and the

corresponding deficiencies and comments. These documents further align

with Olige’s deposition testimony that Houston was terminated in part due

6

In her reply brief, Houston argues “there are no documents to support a

termination meeting prior to her taking FMLA leave,” and “[a]s such, this panel is not

required to believe there was a termination meeting.” While there is some ambiguity as to

the method and structure of this meeting—for example, Mendoza’s declaration states,

“To the best of my knowledge, a meeting occurred on August 11, 2017,”—it does not

contradict the rest of the uncontroverted documentary evidence relating to the termination

reasons discussed—or at least, emailed—prior to the planned August 14 termination of

Houston. An absence of further documentation does not show a dispute as to whether the

reasons behind Houston’s termination were pretextual.

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to the “timeliness” and “accuracy of her work” including “[r]eviews not

being completed, reviews being completed inaccurate [sic], [and] reviews not

being completed on time.”

Next, Houston argues that TDA deviated from its disciplinary

policies, showing pretext. This court has explained that “[f]ailure to follow

internal procedures is generally not enough to create a genuine issue of fact

as to discriminatory motives.” Grubb v. Sw. Airlines, 296 F. App’x 383, 390

(5th Cir. 2008). However, in some circumstances, “when an employer opts

to have a disciplinary system that involves warnings, failure to follow that

system may give rise to inferences of pretext.” Goudeau v. Nat’l Oilwell

Varco, L.P., 793 F.3d 470, 477 (5th Cir. 2015).

The Performance Plan policy describes TDA’s appraisal system,

which it uses “to document the degree to which employees meet job

performance and professional competencies.” The policy notes that

“Supervisors shall document performance on an on-going basis”; that

“employees are allowed (3) business days to write their rebuttal” following

an appraisal; and that “[i]f an employee receives an appraisal rating of 2.49

or below, the supervisor must provide the employee with a Performance

Improvement Plan.” Houston argues that TDA deviated from this policy by

not placing Houston on a Performance Improvement Plan (“PIP”), which

would have afforded her six months from the appraisal date to correct or

remedy performance related issues, or by not “giv[ing] her another appraisal,

rating her 2.49 or below and following-up with a [PIP].”

Houston is correct that she did not receive an appraisal rating of 2.49

or below, thus triggering the need for a PIP.7 However, this does not indicate

7

A rating in the 1.50—2.49 range indicates that an employee “sometimes” meets

expectations: “performs duty in a manner sometimes not meeting expected results.”

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that TDA violated the terms of its policies. Nor does Houston elaborate on

what further coaching or monitoring a PIP would have entailed—in order to

“provide help to improve performance,”—that was not otherwise provided

in the year-long warnings-and-rebuttals process she received.

As to the Disciplinary Policy, Houston argues that TDA skipped steps

in the “progressive disciplinary policy,” including by not “verbally

counsel[ing] Houston before it moved to written warning, then written-

warning probation and then termination,” and failing to explain why it did

not suspend Houston rather than terminate her. Contrary to Houston’s

assertions, the Disciplinary Policy itself does not mandate a specific order of

escalating consequences. Rather, it states that the “types of disciplinary

actions that may be taken include, but are not limited to”: an initial warning,

written warning, probation, suspension, and termination. Additionally, as

defendants assert, “Houston received [these actions] in accordance with

TDA’s policy.” Nor does it violate the policy that TDA terminated rather

than suspended Houston, contrary to Houston’s argument that TDA “could

have suspended Houston” and that “[s]uspension would have been more

plausible than termination.”

Additionally, Houston points to the policy’s requirement that

“[e]very aspect of the process . . . shall be documented,” and argues that

TDA failed to document the “sixty alleged violations prior to Houston’s

written warning in August 2016.” Though the sixty alleged violations were

not documented contemporaneously, they were included in her August 2016

written warning, and Houston was given—and took—the opportunity to

contest those violations. Thus, TDA complied with the policy’s

documentation requirement.

Moreover, none of the asserted policy deviations is akin to instances

where this court has concluded such deviations were evidence of pretext. For

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example, this court has concluded pretext may exist where, instead of

following the disciplinary policy to provide warnings “so that an employee

may take corrective steps,” the employer either failed outright to provide

such warnings or otherwise “manufactured steps in the disciplinary policy by

issuing written warnings to paper his file after it had decided to fire him.”

Goudeau, 793 F.3d at 477; see also Laxton v. Gap Inc., 333 F.3d 572, 581 (5th

Cir. 2003) (holding, in a Title VII pregnancy discrimination case, that

evidence was sufficient to create a jury issue on pretext when, among other

things, plaintiff’s “supervisors never gave her the chance to explain her

conduct or improve it” prior to terminating her and noting that if “[the

employer] bothered to do so, progress might have been made”); Russell v.

McKinney Hosp. Venture, 235 F.3d 219, 224 (5th Cir. 2000) (evidence that

plaintiff “was not given a formal oral warning, a written warning, or a

‘corrective action plan,’ all of which are required by [the employer’s] own

internal procedures” prior to being terminated, among other evidence, was

sufficient to create jury issue on pretext in ADEA age discrimination case).

Houston next argues that TDA’s denial of her telework request was

discriminatory and pretextual. From June 2012 through January 2016,

Houston was permitted to telework and work a compressed workweek. She

concedes this was not “an accommodation” for her medical disability but was

“part of her regular position terms.” When she returned from an extended

medical leave in January 2016, these terms were removed. She promptly re-

requested, as an accommodation of her disability, to work a compressed, 4-

day week (“to take the treatment needed once weekly”) and to telework “as

needed” (“when joints are swollen and in pain”). TDA approved the

compressed schedule but denied the telework request in a one-sentence

determination.

As a preliminary matter, Houston does not expressly argue on

appeal—and did not argue before the district court—that this 2016 telework

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denial itself constitutes an “adverse employment action” under the FMLA.

See Garcia v. Penske Logistics, L.L.C., 631 F. App’x 204, 212 (5th Cir. 2015)

(“The FMLA provides that an employee is entitled to take leave, not to work

from home.”).

Her principal argument instead is that the telework denial eventually

led to her subsequent August 2017 termination. For example, she argues that

by denying her telework, “TDA essentially set her up for failure to terminate

her,” and this shows “a pattern and plan to terminate her.” Houston argues

“[t]he jury is entitled to see this scheme.” Absent specific evidence in the

summary judgment record, these are merely “speculation, improbable

inferences, [and] unsubstantiated assertions” that do not defeat summary

judgment. Acker v. Gen. Motors, L.L.C., 853 F.3d 784, 788 (5th Cir. 2017).

The district court, in a footnote, likewise rejected that “her denial of a

telework accommodation is evidence of retaliation.”

As a final note, Houston argues that the district court discredited her

references to a “Remote Worker Policy.” Houston asserts that this policy

was revised in February 2016, after her telework accommodation was denied.

This remote working policy is largely irrelevant to the teleworking policy under

which Houston’s accommodation request was denied. Moreover, as the

district court concluded, “[t]his ‘Remote Worker Policy’ is not

authenticated and its provenance is unknown.” Indeed, this “Remote

Worker Policy” shows conflicting “revised” dates—one in February 2013

and another in February 2016—and applies only to workers “assigned to

work from a remote site, such as a home office, rather than . . . [an] office.”

Finally, Houston argues that statements made by her supervisors

“show their desire to force Houston to quit,” and thereby show pretext. She

challenges the district court’s conclusion that they were “stray remarks,”

and therefore insufficient to show pretext. However, Houston has neglected

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substantively to brief this issue on appeal, therefore we deem this issue to be

abandoned. Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994) (“A party

who inadequately briefs an issue is considered to have abandoned the

claim.”); see also Brinkmann v. Dall. Cnty. Deputy Sheriff Abner, 813 F.2d 744,

748 (5th Cir. 1987) (failure to identify an error in the district court’s order

“is the same as if [appellant] had not appealed that judgment”).

We conclude that Houston’s arguments fail to raise a disputed

material fact of pretext regarding her termination. Accordingly, we find the

district court was correct to grant summary judgment on Houston’s FMLA

claim.

IV.

The Rehabilitation Act provides: “No otherwise qualified individual

with a disability . . . shall, solely by reason of her or his disability, be excluded

from the participation in, be denied the benefits of, or be subjected to

discrimination under any program or activity receiving Federal financial

assistance . . . .” 29 U.S.C. § 794(a).

Rehabilitation Act claims are also analyzed under the McDonnell

Douglas burden-shifting framework. Cohen v. Univ. of Tex. Health Sci. Ctr.,

557 F. App’x 273, 277 (5th Cir. 2014). To establish a prima facie case of

discrimination under the Rehabilitation Act, “a plaintiff must prove that (1)

she is an ‘individual with a disability’; (2) who is ‘otherwise qualified’; (3)

who worked for a ‘program or activity receiving Federal financial assistance’;

and (4) that she was discriminated against ‘solely by reason of her or his

disability.’” Hileman v. City of Dall., 115 F.3d 352, 353 (5th Cir. 1997) (citing

29 U.S.C. § 794(a)). Under the Rehabilitation Act, an employer is liable only

if the discrimination occurred “solely by reason of her or his disability,” not

when it is simply a “motivating factor.” Soledad v. U.S. Dep’t of Treasury,

304 F.3d 500, 505 (5th Cir. 2002).

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Houston concedes that her Rehabilitation Act claim is “intimately

connected” to her FMLA retaliation claim, and that “[t]o avoid redundancy

and duplication, Houston incorporates her argument for pretext under the

FMLA argument.” Thus, for the same reasons Houston’s FMLA claim

fails, her Rehabilitation Act claim likewise fails.

V.

For the foregoing reasons, the district court’s order granting summary

judgment is AFFIRMED.

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