Opinion · Court of Appeals for the Fifth Circuit
Houston v. TX Dept of Agri
17 F.4th 576
- Type
- Opinion
- Court
- Court of Appeals for the Fifth Circuit
- Jurisdiction
- Federal
- Date
- 2021-11-05
- Topic
- labor-and-employment
stating that claims are abandoned when party fails to substantively brief them | stating that claims are abandoned when party fails to substantively brief them | stating that claims are abandoned when party fails to substantively brief them | stating that claims are abandoned when party fails to substantively brief them (citing 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.”)) | stating that claims are abandoned when a party fails to substantively brief them (citing 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.”) | “Summary judgment cannot be defeated through conclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation.” (quotations and alterations omitted) | “Rehabilitation Act claims are also analyzed under the McDonnell Douglas burden- shifting framework.” | “Rehabilitation Act claims are also analyzed under the McDonnell Douglas burden-shifting framework.” | applying McDonnell Douglas to FMLA discrimination claims
Citator
- Cited by
- 61 opinions
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.
2
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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.
3
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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.
5
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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
6
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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) (citing29 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.
14