The opinion
Case: 21-10600 Document: 00516430793 Page: 1 Date Filed: 08/12/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 12, 2022
No. 21-10600
Lyle W. Cayce
Clerk
Brenda Drerup,
Plaintiff—Appellant,
versus
Consolidated Nuclear Security, L.L.C.,
Defendant—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:19-CV-106
Before Richman, Chief Judge, and Higginbotham and Elrod,
Circuit Judges.
Per Curiam:*
Brenda Drerup sued her employer, Consolidated Nuclear Energy
(“CNS”), alleging discrimination and retaliation in violation of Title VII of
the Civil Rights Act of 1964, the Age Discrimination in Employment Act of
1967 (“ADEA”), the Americans with Disabilities Act (“ADA”), and the
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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Texas Labor Code. The district court granted summary judgment to CNS on
all claims. Drerup timely appealed. We affirm.
I.
CNS operates the Pantex Plant and maintains its internal fire
department. Drerup, now 56, has been a member of the Pantex Fire
Department since 1997. In 2006, she began treatment for allergic rhinitis; in
2009, she was promoted to Fire Captain in charge of compliance. In August
2014, she reported that black mold in her work area exacerbated her allergic
rhinitis, causing severe headaches that inhibited her ability to concentrate or
drive. The department granted her request and Drerup moved out of the Fire
Department building.
Drerup’s claims arise out of three events related to these conditions.
First, every CNS firefighter can qualify to work as an “emergency
responder” on passing the annual Combat Challenge. She consistently
passed the Challenge until 2014, when a foot fracture prevented her from
taking the Combat Challenge. Drerup did not take the test from 2015 to 2018
due to mold in the test facility. In September 2018, the test facility was
washed out. Drerup then passed the Combat Challenge in May 2019,
however she has continued to be denied the opportunity to work as a
responder.
In 2015 there was a strike at CNS and responders filled in for striking
employees, earning overtime compensation, but Drerup could not fill in
because she had not passed the Combat Challenge. Then, in March 2017,
Vance Robinson, although medically restricted from responder status, was
allowed to work as an emergency responder during a grassfire, a one-time
event. On Drerup’s complaint, CNS Employee Concerns determined that
while it was not discriminatory, it was “inconsistent” with past decisions. On
May 4, 2017, Drerup filed an intake questionnaire with the EEOC where she
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described the March 2017 fire as “the most recent” incident of “[o]ngoing
harassment.”
Second, in May 2016, Assistant Fire Chief William Ho-Gland
announced that Battalion Chief Donavon Morgan would retire. Fire Chief
Michael Brock and Ho-Gland decided to reclassify the Battalion Chief
position as a Fire Captain position and hired Joshua Brown. On Drerup’s
complaint, Employee Concerns determined that it was management’s
decision to reclassify the position. After Brown started to work, Ho-Gland
agreed that Drerup could transfer document compliance duties to Brown, but
Brock insisted that Drerup continue with her current compliance duties.
Finally, in 2019, CNS posted an Assistant Fire Chief position. Drerup
applied, although she lacked the required Texas Commission on Fire
Protection (“TCFP”) Fire Instructor II and Fire Officer II certifications.
CNS hired Emory Johnson. Although Johnson lacked the TCFP
certifications when he applied, he had national-equivalent certifications and
the TCFP certifications by the time he interviewed.
Drerup sued CNS, alleging age discrimination and retaliation under
the ADEA, adding by amendment claims under the ADA, Title VII, and the
Texas Labor Code, as well as claims for retaliation. The parties consented to
have the case referred to a magistrate judge for all future proceedings. 1 CNS
moved for summary judgment on all of Drerup’s claims, which the
magistrate judge granted. Drerup timely appealed. We affirm.
1
28 U.S.C. § 636(c).
3
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II.
We review a grant of summary judgment de novo, viewing all evidence
and drawing reasonable inferences in favor of the non-moving party. 2
Summary judgment is proper “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.” 3
III.
We first consider whether Drerup properly exhausted her
administrative remedies before pursuing her claims in federal court.
“Exhaustion occurs when the plaintiff files a timely charge with the EEOC
and receives a statutory notice of right to sue.” 4 The magistrate judge found
that Drerup failed to exhaust her administrative remedies for her claims
relating to the reclassification of the Battalion Chief position and to her denial
of work as a responder during the 2015 strike. 5
A.
In Texas, plaintiffs suing under Title VII and the ADA must file their
charge with the EEOC within 300 days. 6 Drerup did not file her charge until
2
Ratliff v. Aransas County, 948 F.3d 281, 287 (5th Cir. 2020).
3
Fed. R. Civ. P. 56(a).
4
Taylor v. Books A Million, Inc., 296 F.3d 376, 378–79 (5th Cir. 2002).
5
The magistrate judge also held that she did not exhaust her administrative
remedies regarding the temporary reassignment of Morgan’s duties; Drerup does not
appeal this finding.
6
Garcia v. City of Amarillo, No. 2:18-CV-95-Z-BR, 2020 WL 4208060, at *3 (N.D.
Tex. July 22, 2020), aff’d, 836 F. App’x 318 (5th Cir. 2021) (per curiam); see also Fort Bend
County v. Davis, 139 S. Ct. 1843, 1846 (2019).
4
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March 11, 2019, more than 300 days after the Battalion Chief position was
reclassified on December 18, 2017.
To avoid this bar, Drerup argues that the EEOC charge encompassed
the reclassification because she provided her ongoing complaints to
Employee Concerns. Under Title VII a cause of action “may be
based . . . upon any kind of discrimination like or related to the charge’s
allegations, limited only by the scope of the EEOC investigation that could
reasonably be expected to grow out of the initial charges of discrimination.” 7
But Drerup’s Employee Concerns complaints do not extend the scope of her
charge to the reclassification. “[T]he question is whether the employee
already included sufficient facts in his original complaint to put the employer
on notice that the employee might have additional allegations of
discrimination.” 8 Drerup’s 2017 EEOC charge addressed only her inability
to work as a responder for the 2017 grassfire; her claims challenging the
reclassification could not be reasonably expected to grow out of this.
Alternatively, Drerup argues that her 2019 EEOC charge should relate back
to her 2017 charge.
An amended charge relates back to the date the first charge was filed
when the “amendments alleging additional acts which constitute unlawful
employment practices [are] related to or growing out of the subject matter of
the original charge.” 9 But the 2019 charge alleged new claims and facts about
reclassification unrelated to the 2017 grassfire. 10 So, Drerup failed to exhaust
7
Fine v. GAF Chem. Corp., 995 F.2d 576, 578 (5th Cir. 1993) (quoting Fellows v.
Universal Rests., Inc., 701 F.2d 447, 451 (5th Cir. 1983)).
8
Manning v. Chevron Chem. Co., LLC, 332 F.3d 874, 879 (5th Cir. 2003).
9
29 C.F.R. § 1601.12(b).
10
Hornsby v. Conoco, Inc., 777 F.2d 243, 247 (5th Cir. 1985).
5
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her administrative remedies regarding the reclassification of the Battalion
Chief position and this claim was properly barred.
B.
Drerup also argues that the magistrate judge improperly found that
her claim for unequal compensation due to her inability to work as a
responder during the 2015 strike was not administratively exhausted. The
Lily Ledbetter Fair Pay Act of 2009 (“FPA”) allows one to assert backpay
claims for two years prior to filing the charge. 11 While the strike ran from
August to October 2015, less than two years before her timely 2017 EEOC
charge relating to the grassfire, Drerup did not there raise an FPA claim for
unequal compensation or mention compensation. Drerup failed to bring a
timely charge regarding the 2015 strike; those claims are properly barred.
IV.
Drerup next appeals the magistrate judge’s rejection of her claimed
disability under the ADA. When a plaintiff relies on circumstantial evidence
for an ADA claim, we apply the McDonnell Douglas burden shifting
framework. 12 Its first step requires a prima facie case of discrimination under
the ADA, 13 that she “has a disability;” “was qualified for the job;” and “was
subject to an adverse employment decision on account of [her] disability.” 14
Under the ADA, a disability is “a physical or mental impairment that
substantially limits one or more major life activities of such individual.” 15
11
42 U.S.C. § 2000e-5(e)(3)(B).
12
Seaman v. CSPH, Inc., 179 F.3d 297, 300 (5th Cir. 1999).
13
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03 (1973).
14
Thompson v. Microsoft Corp., 2 F.4th 460, 470 (5th Cir. 2021).
15
42 U.S.C. § 12102(1)(A).
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“‘Substantially limits’ is not meant to be a demanding standard.” 16 Major
life activities include “breathing,” “concentrating,” “working,” or “the
operation of a major bodily function,” including the respiratory and immune
systems. 17 There is insufficient evidence to show that Drerup’s respiratory
system, immune system, breathing, or ability to work were substantially
limited. The symptoms she cites (itchy eyes, chest pain, congestion) do not
implicate any major life function and there is no other evidence showing her
breathing or respiratory or immune systems are compromised. Additionally,
although Drerup cannot work from the Fire Department building with her
colleagues or take the Combat Challenge, this is insufficient to show that her
ability to work was substantially limited. “[W]hen the major life activity
under consideration is that of working, the statutory phrase ‘substantially
limits’ requires, at a minimum, that [one] allege [she is] unable to work in a
broad class of jobs.” 18 While Drerup cannot perform specific jobs, such as a
responder, she is not substantially limited in her ability to work a broad class
of jobs, as she remains a Fire Captain. 19 Drerup fails to make a prima facie
case of discrimination.
16
29 C.F.R. § 1630.2(j)(1)(i).
17
42 U.S.C. § 12102(2).
18
Kemp v. Holder, 610 F.3d 231, 238 (5th Cir. 2010) (per curiam) (citing Sutton v.
United Airlines, Inc., 527 U.S. 471, 491 (1999)). In 2008, Congress amended the ADA and
explicitly overturned Sutton with regards to mitigating measures but did not do so with
regards to work restrictions. Williams v. Tarrant Cty. Coll. Dist., 717 F. App’x 440, 446 (5th
Cir. 2018) (per curiam); 42 U.S.C.A § 12101(b)(2)–(3). See also Green v. United Parcel
Serv., Inc., 847 F. App’x 207, 211 (5th Cir. 2021) (per curiam); Mora v. Univ. of Tex. Sw.
Med. Ctr., 469 F. App’x 295, 297–98 (5th Cir. 2012) (per curiam); Stewart v. City of Hous.
Police Dep’t, 372 F. App’x 475, 477 (5th Cir. 2010) (per curiam) (continuing to apply the
Sutton standard).
19
Stewart, 372 F. App’x at 477 (quoting Sutton, 527 U.S. at 492) (“If jobs utilizing
an individual’s skills . . . are available, one is not precluded from a substantial class of
jobs.”).
7
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V.
Next, Drerup appeals the dismissal of her four Title VII and ADEA
claims, alleging discrimination when: (1) she was not promoted to Battalion
Chief; (2) only male employees were allowed to act as responders; (3) she
was not allowed to swap duties with Brown; and (4) she was not interviewed
or hired to be Assistant Fire Chief. We again apply the McDonnell Douglas
burden-shifting framework. 20 A prima facie case of discrimination under
Title VII and the ADEA requires Drerup to show that she is a member of a
protected class, qualified for the position, suffered an adverse employment
action and was replaced by, or treated less favorably than, someone outside
the protected class. 21 While Drerup is a member of a protected class for
purposes of both Title VII and the ADEA, she fails to make her prima facie
case on each of her claims.
First, Drerup must specifically show that “she sought and was
qualified for the position,” was rejected, and CNS continued to seek or
promote applicants with her qualifications. 22 Because Drerup never applied
to be Battalion Chief, she was not rejected for the position. Nor did CNS
“continue[] to seek or promote applicants” for the position. 23 Indeed no one
was hired as Battalion Chief.
20
McDonnell Douglas, 411 U.S. at 802–03; Turner v. Kan. City S. Ry. Co., 675 F.3d
887, 892 (5th Cir. 2012).
21
Sanders v. Christwood, 970 F.3d 558, 561 (5th Cir. 2020); Russell v. McKinney
Hosp. Venture, 235 F.3d 219, 223–24 (5th Cir. 2000). As a woman over 40, Drerup is
protected by both Title VII and the ADEA. 29 U.S.C. § 631(a).
22
Lindsley v. TRT Holdings, Inc., 984 F.3d 460, 469 (5th Cir. 2021) (citing Davis v.
Dall. Area Rapid Transit, 383 F.3d 309, 317 (5th Cir. 2004)).
23
Drerup’s claims regarding the reclassification itself are barred as she failed to
administratively exhaust the claim.
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Second, Drerup argues that she was treated less favorably than four
similarly situated male employees who worked as responders: Robinson (who
failed the Combat Challenge), and Hill, Knapp, and Hale (who did not work
in the Fire Department building). Drerup must show that she was treated less
favorably than a similarly situated comparator outside the protected class.24
A similarly situated employee must share the same job responsibilities and
supervisor. 25 None of these men are similarly situated to Drerup. She could
not act as a responder because she had not taken and passed the challenge,
could not enter the Fire Station, and had a CNS medical restriction. It is the
combination of these factors, as opposed to those employees only having one
factor present, that disqualified Drerup from the position.
Third, Drerup argues that Brock did not allow her to switch duties
with Fire Captain Brown. As both Drerup and Brown are Fire Captains, this
would have been a lateral transfer. While “the denial of a purely lateral
transfer is not an adverse employment action,” 26 “the denial of a transfer
may be the objective equivalent of the denial of a promotion” qualifying as an
adverse employment action when the new position is objectively better. 27
Here, however Drerup only asserts that she preferred Brown’s duties to her
own. She failed to create a genuine issue of material fact that his role was
objectively more prestigious, and she failed to make a prima facie case.
Drerup next argues that she faced discrimination when she was not
hired to be Assistant Fire Chief but fails to show that she was qualified for the
position. The Assistant Fire Chief position required five certifications, two
24
Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 259–60 (5th Cir. 2009).
25
Id. at 259–60.
26
Alvarado v. Tex. Rangers, 492 F.3d 605, 612 (5th Cir. 2007).
27
Id. at 614.
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of which Drerup lacked. Although Johnson, who was ultimately hired,
initially lacked these certifications, he had the national equivalents when he
applied. He also had all of the TCFP certifications by the time of his
interview. Additionally, the Assistant Fire Chief had to be able to be
“physically present at the fire station,” but Drerup could not enter the fire
station. While Johnson could not enter the building alone until he received
security clearance, he could, and did, enter the building with an escort.
Drerup fails to make a prima facie case of discrimination. 28
VI.
Finally, Drerup argues she was retaliated against when she was not
hired as Assistant Fire Chief or Battalion Chief. To establish a prima facie
case of retaliation, Drerup must show that she engaged in protected activity,
she faced an adverse employment action, and there was “a causal link
between the protected activity and the adverse action.” 29 To review
retaliation claims, we again follow the McDonnel Douglas burden shifting
framework. 30
Drerup fails to make a prima facie case. As for the position of Assistant
Fire Chief, CNS had a legitimate, nondiscriminatory reason for not hiring
her—she was not qualified. Drerup has offered no evidence that CNS’s
28
Lindsley, 984 F.3d at 469.
29
Badgerow v. REJ Properties, Inc., 974 F.3d 610, 618–19 (5th Cir. 2020) (citation
omitted).
30
Id. at 618.
10
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decision not to hire her was mere pretext. 31 As to her claim that not hiring her
as Battalion Chief was retaliation—she never applied for the position. 32
****
Accordingly, we AFFIRM the district court.
31
Feist v. La., Dep’t of Just., Off. of the Atty. Gen., 730 F.3d 450, 454 (5th Cir. 2013).
32
Lindsley, 984 F.3d at 469. Drerup also argues that the reclassification of the
Battalion Chief position was retaliation. This claim is barred as Drerup failed to exhaust her
administrative remedies.
11