Gosby v. Apache Industrial

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

April 8, 2022

No. 21-40406

Lyle W. Cayce

Clerk

Arlicia Gosby,

Plaintiff—Appellant,

versus

Apache Industrial Services, Incorporated,

Defendant—Appellee.

Appeal from the United States District Court

for the Eastern District of Texas

No. 1:20-cv-69

Before Southwick, Haynes, and Higginson, Circuit Judges.

Leslie H. Southwick, Circuit Judge:

A temporary employee on a construction job suffered a diabetic attack

at work. Six days later, the employee was terminated along with several

others. The employee sued her employer, alleging she had been

discriminated against due to her diabetes. The district court granted

summary judgment for the employer. We REVERSE and REMAND.

FACTUAL AND PROCEDURAL BACKGROUND

Apache Industrial Services, Inc. hired Arlicia Gosby on March 23,

2018, to work as a scaffolding helper at an Exxon plant in Beaumont, Texas.

No. 21-40406

The job consisted mostly of assisting in the building or dismantling of

scaffolds. She was required to undertake a physical examination before she

began work. In her pre-employment paperwork and physical examination,

Gosby disclosed that she suffers from diabetes, a condition covered by the

Americans with Disabilities Act (“ADA”). See, e.g., 29 C.F.R.

§ 1630.2(j)(3)(iii). On the day of her physical, Gosby’s blood glucose levels

were elevated. A nurse practitioner recommended a consultation with

Gosby’s primary care provider in addition to following a restriction against

climbing at the jobsite.

After Gosby’s doctor cleared her for work, she began on April 3, 2018.

Apache does not dispute that Gosby was qualified to do her job even after

Apache’s physician recommended she not climb in her job working with

scaffolding. Gosby worked for Apache for several weeks, with the

expectation that the job would not last more than six months. Her

employment terminated long before that six-month mark when she and

eleven other employees were included in a “reduction in force” on May 2,

2018.

Gosby alleged that her inclusion among those terminated was due to

her having diabetes. On April 26, just a week earlier, she had suffered a

diabetic attack at work and was taken to the medical tent for treatment.

Gosby’s supervisor, Charles Hutchins, was informed of the incident and sent

Gosby home to stabilize her blood sugar. Gosby soon received clearance to

return to work and informed Apache of that clearance on her next scheduled

workday. That day, though, Apache sent home the scaffolding team on

which Gosby worked, allegedly due to lack of work. Two days later, Apache

announced 12 layoffs that included Gosby. Gosby has stated that two Apache

employees, Edward Mason and Jacob Primeaux, told her that she was

included in the layoffs because of her visit to the medical tent. During her

deposition, Gosby stated that she had even earlier been warned by Primeaux

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not to go to the medical tent for a jammed finger because she “probably

would have got laid off” for being a “risk.” Gosby’s supervisor, Hutchins,

is the person who signed the paperwork for Gosby’s discharge.

Gosby filed a charge with the Equal Employment Opportunity

Commission alleging discrimination on account of her disability. After

exhausting her administrative remedies, Gosby sued Apache in the United

States District Court, Eastern District of Texas, bringing claims for damages

under the ADA. At the conclusion of discovery, the district court granted

Apache’s motion for summary judgment. Gosby timely appealed.

DISCUSSION

We review a grant of summary judgment de novo, applying the same

legal standard as the district court. Caldwell v. KHOU-TV, 850 F.3d 237, 241

(5th Cir. 2017). Summary judgment is appropriate when the movant shows

“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). We view evidence

and all factual inferences in the light most favorable to the nonmoving party.

Smith v. Reg’l Transit Auth., 827 F.3d 412, 417 (5th Cir. 2016).

The ADA prohibits discrimination against a qualified individual based

on the individual’s disability. 42 U.S.C. § 12112(a); EEOC v. LHC Grp., Inc.,

773 F.3d 688, 694 (5th Cir. 2014). An employee may use “direct or

circumstantial evidence, or both” to establish a case of discrimination.

Nall v. BNSF Ry. Co., 917 F.3d 335, 340 (5th Cir. 2019). In cases in which

the plaintiff produces only circumstantial evidence, we proceed under the

McDonnell Douglas burden shifting framework. Goudeau v. Nat’l Oilwell

Varco, L.P., 793 F.3d 470, 474 (5th Cir. 2015) (citing McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973)). The framework first requires the

employee to establish a prima facie case of discrimination. See LHC Grp., 773

F.3d at 694. That requires an employee to establish (1) she is disabled within

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the meaning of the ADA, (2) she was qualified for the job, and (3) she was

fired on account of her disability. See Nall, 917 F.3d at 341. If a prima facie

case is established, the employer has the burden of “articulat[ing] a

legitimate, non-discriminatory reason” for the firing. See id. If the employer

does so, the burden returns to the plaintiff “to produce evidence from which

a jury could conclude that the employer’s articulated reason is pretextual.”

Cannon v. Jacobs Field Servs. N.A., Inc., 813 F.3d 586, 590 (5th Cir. 2016).

We summarize the district court’s analysis in granting summary

judgment to Apache. First, the district court found that Gosby had failed to

establish a prima facie case of discrimination because she produced no

evidence for a causal link between her disability and termination beyond the

temporal proximity of her diabetic attack to her termination. Further, the

district court decided the temporal relationship “should be given little

weight” because Gosby expected to be laid off within six months when the

projects were completed.

The district court also disregarded Gosby’s recollection of statements

from Apache employees Primeaux and Mason because there was no evidence

the employees were involved in or made the decision to terminate Gosby. As

a result, the district court stated it viewed the evidence in Gosby’s favor but

could not infer that Apache intended to discriminate on the basis of Gosby’s

diabetes.

The district court then concluded that even had Gosby presented a

prima facie case, Apache presented a legitimate, nondiscriminatory, and

unrebutted reason for her termination. The reason was a reduction in force.

The burden then shifted to Gosby to support that the reason was pretextual.

She argued that a fact question arose because Apache offered different

explanations for how they chose employees for the reduction in force; that

another fact question remained as to whether Gosby’s work restrictions

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No. 21-40406

influenced her termination; and that Apache retained a similarly situated

employee while terminating Gosby. The district court granted summary

judgment for Apache.

Gosby argues the district court erred when it stated that temporal

proximity was insufficient to establish a prima facie case when the

employment is “short-term in nature.” She also argues that the district court

committed various errors in applying the McDonnell Douglas framework. We

now evaluate those arguments.

I. Gosby’s prima facie case

The district court found that Gosby had carried her burden to

establish a prima facie case except for failing to demonstrate a causal link

between her disability and her termination. Gosby had argued that she had

established the necessary causal connection based on the “exceptionally

close temporal proximity between” her diabetic episode that caused her to

be sent home briefly and her termination. The district court rejected that

there was any significance to the fact that only six days passed between her

diabetic attack and layoff since Gosby’s employment was to be temporary

anyway. The district court believed that if temporal proximity alone were

sufficient to establish a prima facie showing in a case with only brief

employment, “Apache would only be able to terminate Gosby during a small

portion of her employment without being at risk of a temporal proximity

argument.

We disagree with the district court. “The burden of establishing a

prima facie case of disparate treatment is not onerous.” Turner v. Kansas City

S. Ry. Co., 675 F.3d 887, 892 (5th Cir. 2012) (quoting Texas Dep’t of Cmty.

Affairs v. Burdine, 450 U.S. 248, 253 (1981)). In retaliation cases, “temporal

proximity between protected activity and [adverse employment action] is

sometimes enough to establish causation at the prima facie stage.” See

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Porter v. Houma Terrebonne Hous. Auth. Bd. of Comm’rs, 810 F.3d 940, 948–

49 (5th Cir. 2015). This guidance is qualified, though: “[T]he protected act

and the adverse employment action [must be] ‘very close’ in time.” Id.

(alterations in original). The principle holds for discrimination cases as well.

A relevant precedent is our recent decision in Lyons v. Katy

Independent School District, 964 F.3d 298 (5th Cir. 2020). There, we found

error in a district court’s finding that a “one-week temporal proximity

between” a protected activity and an adverse action was insufficient to

establish a prima facie case. Id. at 306. Apache, though, of course insists the

district court was correct to conclude that employment that by its very nature

is to be short term must be treated differently. We can agree at least to the

extent of saying that facts matter. Evaluating temporal proximity in the

context of employment that is understood to be short-term cannot ignore that

context. How long her employment was expected to last may have been

unknown, but all we are concerned with here is whether Gosby carried her

light burden of showing a prima facie case.

The evidence was that Gosby was terminated immediately after an

event that highlighted her ADA-protected disability. If in fact her short-term

position was to end for other reasons at the same time, that can be shown by

the employer as part of its response. Gosby, a new and disabled employee,

was included in the reduction in force. Employment was continuing for

many, and perhaps most, other scaffolding employees. The proximity of her

diabetic episode on the job and her termination was sufficient to constitute a

prima facie case that she was included in the group to be terminated for ADA-

violative reasons.

If failure to satisfy this first step in the burden shifting framework was

the only reason for summary judgment, we would reverse simply for that

error. Here, though, the district court also found Gosby failed to show

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Apache’s explanation for her termination was pretextual. Thus, we

continue.

II. Pretext

After the employee makes out a prima facie case, the employer must

articulate a “legitimate, nondiscriminatory reason” for the adverse

employment action; if it does so, the burden shifts back to the employee. See

Goudeau, 793 F.3d at 474. At that point, in response to a motion for summary

judgment, “an employee must present ‘substantial evidence’ that the

employer’s legitimate, nondiscriminatory reason for termination is

pretextual.” Delaval v. PTech Drilling Tubulars, LLC, 824 F.3d 476, 480 (5th

Cir. 2016) (quoting Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 233

(5th Cir. 2015)). A plaintiff may meet this burden by presenting “evidence

of disparate treatment or by showing that the employer’s proffered

explanation is false or ‘unworthy of credence.’” See id. (quoting Laxton v.

Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003)).

The district court determined that Apache’s reduction-in-force

justification was a “legitimate, non-discriminatory reason for termination.”

The burden then shifted back to Gosby to rebut the reason as pretextual.

Gosby did not challenge the reduction in force itself as pretextual, but she did

claim that her inclusion in it was discriminatory. Gosby did not argue she was

“clearly better qualified than similarly situated employees” but claimed that

Apache used criteria for selecting those to be terminated that allowed her

disability to be considered. In support of the claim, she argues here as she

did in district court that factual disputes remain as to the actual reasons she

and others were selected for termination, and whether her medical

restrictions prevented her from obtaining the experience and training that

others gained. The district court found that Gosby failed to establish a

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material question of fact about whether Apache’s “reduction in force” was

pretextual.

We summarize the crux of one of Gosby’s arguments as being that

Apache was unable to express coherent, consistent criteria that it used in

reducing the force. Apache’s inability to state reliably why certain people

were chosen for termination is significant, Gosby argues, because it discredits

Apache’s insistence that no discrimination was involved.

Gosby is correct that Apache witnesses gave different rationales for

inclusion in the reduction in force at different times. One set of offered

criteria for the layoffs was that they were based on “performance, the skillset

of individuals, and time on the worksite.” Another explanation was much

more detailed, and seemingly different:

typically in a layoff, we would impact people at a lower job

level, want to keep the employees that are highly skilled, and

then also people who have had longer time at the site. . . . [s]o

it would be, again, their job title or job level. It could be

seniority, the performance. Any customer requirements at the

time would also be a consideration. You know, attendance or

discipline would also be taken into consideration. Yeah those

are the main factors that are involved in the decision.

In addition, there is no evidence that Apache evaluated both

terminated and retained employees against any fixed criteria. The record

indicates that Gosby’s supervisor, Hutchins, assessed each of the terminated

employees against a set of ten criteria. There is no similar documentary

evidence of assessments for retained employees. Indeed, Apache has argued

that these evaluations were not the basis for inclusion in the reduction in

force. The lack of evidence of a meaningful assessment process alone does

not prove that Apache discriminated against Gosby. The inconsistent

explanations and the absence of clear criteria, though, is evidence tending to

show that Apache’s “proffered explanation is false or ‘unworthy of

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credence.’” Delaval, 824 F.3d at 480 (quoting Laxton, 333 F.3d at 578). At

this point, that is enough. We hold that Gosby has presented evidence

sufficient to rebut Apache’s nondiscriminatory reason for termination and

show that a fact question exists as to whether that explanation is pretextual. 1

III. Conclusion

Gosby has established the elements of her prima facie case. She has

also presented “substantial evidence” that Apache’s nondiscriminatory

rationale for her inclusion in the reduction in force was pretextual. See

Delaval, 824 F.3d at 480. Consequently, an issue of material fact remains

regarding whether Apache discriminated against Gosby on the basis of her

disability by including her in the reduction of force. We REVERSE the

district court’s summary judgment and REMAND for proceedings

consistent with this opinion.

1

Gosby also claims that the district court improperly disregarded the warnings

allegedly made by Jacob Primeaux to avoid the medical tent and the statements by Primeaux

and Edward Mason that she had been terminated due to her disability. Apache argues that

Gosby has forfeited this argument because she did not refer to the statements “as evidence

of pretext” in her summary judgment briefing, and that the statements are hearsay and

incapable of being presented in an admissible form at trial. Those are issues relevant to the

grant of summary judgment. Because we reverse and remand for further proceedings, we

need not analyze either issue as it is unlikely either will reappear, at least in the same form.

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