Perry v. Department of Veterans Affairs

Filing 51

ORDER AND REASONS granting 38 Motion for Summary Judgment. Plaintiff's complaint is DISMISSED WITH PREJUDICE. Signed by Judge Sarah S. Vance on 11/19/2020. (mm)

Case 2:18-cv-14180-SSV-MBN Document 51 Filed 11/19/20 Page 1 of 23

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BONITA PERRY

CIVIL ACTION

VERSUS

NO. 18-14180

DEPARTMENT OF VETERANS
AFFAIRS

SECTION “R” (5)

ORDER AND REASONS
Defendant, the Department of Veterans Affairs, moves for summary
judgment. Because there is no genuine dispute as to any material fact, and
because the defendant is entitled to a judgment as a matter of law, the Court
grants defendant’s motion.

I.

BACKGROUND
This case arises from an employment dispute. Plaintiff, Bonita Perry,

began her career at the VA in 2006. 1 In 2013, plaintiff transferred from the
VA’s office at Fort Polk, Louisiana, to New Orleans. 2 Plaintiff worked as a
vocational rehabilitation counselor (“VRC”).3

1
2
3

R. Doc. 38-2 at 298 (Initial Decision at 2).
R. Doc. 38-2 at 249 (Transcript at 203).
R. Doc. 38-2 at 298 (Initial Decision at 2).

VRCs are responsible for

Case 2:18-cv-14180-SSV-MBN Document 51 Filed 11/19/20 Page 2 of 23

processing veterans’ cases through a counseling process, with the goal of
identifying and providing benefits administered by the VA. 4
While working in New Orleans, plaintiff allegedly suffered a hand
injury.5 She testified that she began complaining in 2014 about a “knot in
[her] hand” that she believed was “related to [her] work area.”6 She stated
that she asked for an “ergonomic assessment” to identify accommodations
for her hand.7 But, according to plaintiff, the VA required that she get a
medical statement from a doctor before she could receive the assessment. 8
Plaintiff testified that a doctor diagnosed a “clog[]” or “knot” in the
tendons in her hand, and plaintiff underwent hand surgery in June 2014. 9
She stated that, after surgery, she had to wear a cast for two months and
attend physical therapy.10 Because of this injury, plaintiff went on medical
leave between June 4, 2014 and September 2, 2014. 11
Plaintiff requested several accommodations for her hand when she
returned to work.12

4
5
6
7
8
9
10
11
12

She acknowledged that she received some

Id.
R. Doc. 38-2 at 249 (Transcript at 203).
Id.
Id.
Id.
Id. at 249-50 (Transcript at 203-04).
Id. at 250 (Transcript at 204).
Id.
Id.
2

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accommodations, including “Dragon Naturally Speaking,” a type of speechrecognition software, and a new chair.13 She also stated that she received a
footrest and a hands-free telephone. 14 But, plaintiff contends she did not
receive other requested accommodations, such as a keyboard tray table.15
She also testified that she experienced various problems with the Dragon
software, and she reported these problems each time they occurred. 16
Plaintiff further testified that, beginning in 2016, she began experiencing
mental health issues. 17

To accommodate her mental health, plaintiff

requested a transfer to the VA’s Montgomery, Alabama office, so that she
could be closer to her home in Mobile.18 Although it is not clear from the
record exactly when, plaintiff ultimately filed a formal EEOC complaint for
failure to reasonably accommodate her requests. 19
As part of the EEOC proceeding, plaintiff deposed her first- and
second-line supervisors, Carolyn Pannell and Debbie Biagioli, in July and
August 2016.20

Plaintiff states that, a “couple of weeks” after these

Id. at 253-54 (Transcript at 207-08).
Id. at 254 (Transcript at 208); R. Doc. 38-3 at 7 (Plaintiff’s
Supplemental Response to Motion to Compel Order).
15
R. Doc. 38-2 at 254 (Transcript at 208).
16
Id. at 254-55, 262 (Transcript at 208-09, 216).
17
Id. at 255-56 (Transcript at 209-10).
18
Id. at 256 (Transcript at 210).
19
Id. at 256-57 (Transcript at 210-11).
20
Id. at 106, 164, 257 (Transcript at 60, 118, 211).
3
13

14

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depositions, she received an email informing her that the VA would grant her
request for a transfer to Montgomery, but that the VA would attach a
performance improvement plan (“PIP”) to it. 21
Pannell testified that the VA imposed the PIP to address deficiencies in
plaintiff’s job performance. 22 She stated that plaintiff’s performance began
deteriorating in 2015, and that the problems worsened in 2016. 23 On July
29, 2016 Pannell, Perry, and her union representative had a meeting to
discuss plaintiff’s allegedly deficient performance.24 On September 29, 2016
Pannell issued a “warning of unacceptable performance” memorandum to
plaintiff.25 That memorandum outlined the PIP and explained that plaintiff’s
performance was deficient under three “critical elements”—production,
timeliness, and program data and integrity.26 The memorandum asserted
that Perry must improve her performance to specified measures in order to
satisfy the VA’s requirements.27 The memorandum also set out training that
the VA would provide.28 The PIP was set to last for 90 days, during which

Id. at 257 (Transcript at 211).
Id. at 66 (Transcript at 20).
23
Id. at 63 (Transcript at 17)
24
R. Doc. 38-2 at 4 (Warning of Unacceptable Performance).
25
R. Doc. 38-2 at 4-17 (Warning of Unacceptable Performance).
26
Id. at 4.
27
Id. at 4-8.
28
R. Doc. 38-2 at 6. A handwritten note in the margins of the
memorandum states that plaintiff “does not want [training.]” Pannell
4
21

22

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plaintiff was expected to “perform the duties of [her] position at a fully
successful level.”29
Because plaintiff took leave during the PIP period, it was extended to a
total of 111 days. 30 It ended on January 24, 2017. 31 Pannell concluded that
plaintiff failed to improve her performance to a successful level.32
Accordingly, plaintiff’s second line supervisor, Biagioli, issued a “proposed
removal for unacceptable performance.”33 Mark Balogna, director of the
VA’s regional office in New Orleans, ultimately sustained the proposed
removal and issued the VA’s final decision: removal for unacceptable
performance. 34
Plaintiff appealed the termination to the Merit Systems Protection
Board (“MSPB”).35 At the MSPB, plaintiff was represented by counsel.36 She
brought four claims: (1) improper removal under 5 U.S.C. § 4303, et seq., i.e.,
Chapter 43 removal; (2) harmful procedural error; (3) failure to reasonably

testified that she wrote this note during the meeting because Perry refused
the training. R. Doc. 38-2 at 69 (Transcript at 23). Plaintiff testified that she
never refused the training. R. Doc. 38-2 at 282 (Transcript at 236).
29
R. Doc. 38-2 at 8 (Warning of Unacceptable Performance).
30
R. Doc. 38-2 at 21 (PIP Summary)
31
Id.
32
Id.
33
R. Doc. 38-2 at 22-26 (Proposed Removal).
34
R. Doc. 38-2 at 27-30 (Removal).
35
R. Doc. 38-2 at 31 (Appeal Form)
36
See R. Doc. 38-2 at 297 (Initial Decision at 1).
5

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accommodate in violation of the Rehabilitation Act (“RA”), 29 U.S.C. § 701,
et seq.; and (4) discriminatory retaliation for protected EEO activity in
violation of Title VII, 42 U.S.C. § 2000-e, et seq. Administrative Judge (“AJ”)
Patrick J. Mehan affirmed Perry’s removal on October 22, 2018 and
dismissed her other claims. 37 On December 24, 2018, plaintiff, proceeding
pro se, appealed AJ Mehan’s decision to this Court. 38 Plaintiff’s complaint
consists of a single paragraph. It states:
Pursuant to Title 5 U.S.C. § 7703(b)(2), Bonita Perry petitions
this Honorable Court for review of the decision of the Merit
Systems Protection board decision, Case DA-0432-17-0313-I-2,
which became final on November 26, 2018. A copy of the
decision is attached to this petition. 39
The entirety of AJ Mehan’s decision is attached as an exhibit to her
complaint. 40

II.

LEGAL STANDARD
Summary judgment is warranted when “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); see also Celotex Corp. v.

37
38
39
40

Id. at 297-337 (Initial Decision).
R. Doc. 1.
Id.
R. Doc. 1-1 at 1-40.
6

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Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994) (en banc) (per curiam). “When assessing whether a
dispute to any material fact exists, [the Court] consider[s] all of the evidence
in the record but refrain[s] from making credibility determinations or
weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness
Ins., 530 F.3d 395, 398-99 (5th Cir. 2008). All reasonable inferences are
drawn in favor of the nonmoving party, but “unsupported allegations or
affidavits setting forth ‘ultimate or conclusory facts and conclusions of law’
are insufficient to either support or defeat a motion for summary judgment.”
Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (quoting
10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure
§ 2738 (2d ed. 1983)); see also Little, 37 F.3d at 1075. “No genuine dispute
of fact exists if the record taken as a whole could not lead a rational trier of
fact to find for the nonmoving party.” EEOC v. Simbaki, Ltd., 767 F.3d 475,
481 (5th Cir. 2014).
If the dispositive issue is one on which the moving party will bear the
burden of proof at trial, the moving party “must come forward with evidence
which would ‘entitle it to a directed verdict if the evidence went
uncontroverted at trial.’” Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257,
1264-65 (5th Cir. 1991) (quoting Golden Rule Ins. v. Lease, 755 F. Supp. 948,
7

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951 (D. Colo. 1991)). “[T]he nonmoving party can defeat the motion” by
either countering with evidence sufficient to demonstrate the “existence of a
genuine dispute of material fact,” or by “showing that the moving party’s
evidence is so sheer that it may not persuade the reasonable fact-finder to
return a verdict in favor of the moving party.” Id. at 1265.
If the dispositive issue is one on which the nonmoving party will bear
the burden of proof at trial, the moving party may satisfy its burden by
pointing out that the evidence in the record is insufficient with respect to an
essential element of the nonmoving party’s claim. See Celotex, 477 U.S. at
325.

The burden then shifts to the nonmoving party, who must, by

submitting or referring to evidence, set out specific facts showing that a
genuine issue exists. See id. at 324. The nonmovant may not rest upon the
pleadings, but must identify specific facts that establish a genuine issue for
resolution. See, e.g., id.; Little, 37 F.3d at 1075 (“Rule 56 ‘mandates the entry
of summary judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party
will bear the burden of proof at trial.’” (quoting Celotex, 477 U.S. at 322
(emphasis added))).

8

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III. DISCUSSION
This is a “mixed case,” because plaintiff brought discrimination and
non-discrimination claims at the MSPB. Aldrup v. Caldera, 274 F.3d 282,
285-86 (5th Cir. 2001). In a mixed case, the Court applies a bifurcated
standard of review. For the two non-discrimination claims, which challenge
her removal under Chapter 43 and allege harmful procedural error, the
Court’s review is “based on the administrative record” and the Court will
uphold the MSPB’s decision unless it is “arbitrary and capricious,
unsupported by substantial evidence or otherwise not in accordance with
law.” Id. at 287 (citing 5 U.S.C. § 7703(c)). MSPB regulations define
substantial evidence as “[t]he degree of relevant evidence that a reasonable
person, considering the record as a whole, might accept as adequate to
support a conclusion even though other reasonable persons might disagree.”
5 C.F.R. § 1201.4(p). This standard is “lower” than the “preponderance of
the evidence” standard. Id. As to the discrimination claims for failure to
reasonably accommodate and for unlawful retaliation, the plaintiff is entitled
to “trial de novo.” 5 U.S.C. § 7703(c); see also Aldrup, 274 F.3d at 285.
A.

Non-Discrimination Claims

Plaintiff asserted two non-discrimination claims at the MSPB:
improper removal under Chapter 43 and harmful procedural error. The
9

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Court notes that plaintiff did not raise any arguments in her response to
defendant’s motion for summary judgment on these claims.41 Nevertheless,
the Court reviews these claims based on the administrative record.
1.

Termination

The statutory basis for Perry’s termination was Chapter 43. Under this
statute, an agency employee may be terminated for “unacceptable
performance.” 5 U.S.C. § 4303(a). Unacceptable performance is not a
synonym for “generally poor performance or inefficiency.” Lovshin v. Dep’t
of Navy, 767 F.2d 826, 834 (Fed. Cir. 1985).

Rather, unacceptable

performance is statutorily defined as performance that “fails to meet
established requirements in one or more critical elements of the job.”
5 U.S.C. § 4301(3). A critical job element is defined by federal regulations as
a “work assignment or responsibility of such importance that unacceptable
performance on the element would result in a determination that an
employee’s overall performance is unacceptable.” 5 C.F.R. § 430.203.
Under Chapter 43, after an agency has set up an “approved
performance appraisal system,” it must (1) communicate the performance
standards and critical elements of an employee’s position to the employee at
the outset of the appraisal period; (2) warn the employee of inadequacies in

41

R. Doc. 47.
10

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critical elements during the appraisal period; and (3) counsel the employee
and afford an opportunity for improvement. Lovshin, 767 F.2d at 834. If it
satisfies those requirements, an agency may terminate an employee for
receiving a rating of unacceptable with respect to even a single critical job
element.

Id.

The agency must prove unacceptable performance with

“substantial evidence.” 5 U.S.C. § 7701(c)(1)(A).
Plaintiff conceded that she was evaluated under an approved
performance appraisal system,42 and AJ Mehan did not err in finding that
the VA satisfied the remaining requirements of unacceptable performance by
substantial evidence.

First, he found that the VA communicated the

“observed deficiencies in her performance and how they related to the critical
elements of her position” at the beginning of the PIP. 43 Indeed, this finding
is supported by the “warning of unacceptable performance” that plaintiff
received on September 29, 2016.44 Second, based on the same document, he
found that the VA warned Perry that she would be subject to an adverse
action, including removal, if her performance did not improve after the
PIP.45

R. Doc. 38-2 at 302 n.6.
Id. at 311 (Initial Decision at 15).
44
R. Doc. 38-2 at 4-9 (Warning of Unacceptable Performance); R. Doc.
38-2 at 10-17 (VRC Performance Standards).
45
R. Doc. 38-2 at 311 (Initial Decision at 15).
11
42
43

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Third, AJ Mehan found that plaintiff had an opportunity to show
improvement by working on her existing case load and new cases during the
PIP, which lasted 111 days.46 AJ Mehan also addressed plaintiff’s argument
that the VA failed to provide her with an opportunity to improve because it
never gave her training that was contemplated under the PIP. 47 The VA did
not contest that Perry never received this training, but it presented evidence
that plaintiff rejected it. 48 AJ Mehan relied on Pannell’s testimony and her
contemporaneous notes from the meeting in which Pannell discussed the
PIP with Perry to make a credibility determination that Perry rejected the
training.49 This Court “may not reweigh the evidence or substitute its own
judgment for that of the [MSPB] even if this Court finds that the evidence
preponderates against the Board’s decision.” Bonet v. U.S. Postal Serv., 712
F.2d 213, 216 (5th Cir. 1983).

An AJ’s credibility determinations are

“virtually unreviewable.” Bieber v. Dep’t of Army, 287 F.3d 1358, 1364 (5th
Cir. 2002). Even if the Court found that the evidence weighed against AJ
Mehan’s conclusion—which it does not—it could not overturn the result on
this ground.

46
47
48
49

Id. at 313 (Initial Decision at 17).
Id. at 314-17 (Initial Decision at 18-21).
Id. at 314, 316 (Initial Decision at 18, 20).
Id. at 318-19 (Initial Decision at 22-23).
12

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Finally, AJ Mehan correctly concluded that the VA presented
substantial evidence demonstrating that Perry’s performance was deficient
as to critical elements one and five—production and program and data
integrity. 50 Under critical element one, plaintiff had to achieve 15 “positive
outcomes,” maintain 85% “active cases” and have 14 “job ready decisions.”51
According to the evidence in the administrative record, including the PIP
summary, plaintiff did not attain any positive outcomes, her percentage of
active cases fell to 34.6%, and she produced no job ready decisions. 52 AJ
Mehan considered plaintiff’s testimony that she “may have” had two positive
outcomes, but noted that this still fell short of the 15 required. 53 AJ Mehan
did not err in concluding that the VA submitted substantial evidence
establishing that Perry’s performance failed to satisfy this critical element.
Critical element five required that plaintiff comply with various
policies and procedures in counseling actions, case management actions, and
documentation. 54 To achieve a successful level, plaintiff could have “[n]o
more than three instances of minor, unintentional failures to meet policy or

R. Doc. 38-2 at 308, 310-11 (Initial Decision at 12, 14-15).
R. Doc. 38-2 at 4 (Warning of Unacceptable Performance).
52
R. Doc. 38-2 at 18 (PIP Summary).
53
R. Doc. 38-2 at 308 (Initial Decision at 12); R. Doc. 38-2 at 285
(Transcript at 239).
54
R. Doc. 38-2 at 5 (Warning of Unacceptable Performance).
13
50
51

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directive requirements,” or “[n]o more than one instance of intentional
failure to comply with a policy which results in significant negative impact to
a Veteran or Servicemember.”55 The PIP summary shows that the VA
documented five unintentional failures to comply with policies or
directives.56 AJ Mehan noted that plaintiff did not contest these deficiencies
and correctly concluded that the VA established plaintiff’s failure to satisfy
critical element five with substantial evidence. 57
In sum, AJ Mehan relied on documentary evidence, performance data,
and testimony from numerous witnesses to conclude that the VA
appropriately terminated plaintiff due to unacceptable performance. The
Court concludes that the MSPB’s decision on the wrongful termination was
not arbitrary and capricious, unsupported by substantial evidence, or
otherwise contrary to law. Accordingly, the Court must uphold the MSPB’s
determination. Defendant is entitled to summary judgment on the wrongful
termination claim.
2.

Harmful Procedural Error

The MSPB may not uphold the termination if the VA committed
harmful error in reaching the decision to remove plaintiff. See 5 C.F.R.

55
56
57

Id.
R. Doc. 38-2 at 20 (PIP Summary).
R. Doc. 38-2 at 311 (Initial Decision at 15).
14

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1201.56; see also Cornelius v. Nutt, 472 U.S. 648, 658 (1985). Harmful error
occurs where application of the agency’s procedures “is likely to have caused
the agency to reach a conclusion different from the one it would have reached
in the absence or cure of the error.” 5 C.F.R. § 1201.4(r). Plaintiff bears the
burden of showing harmful error, “i.e., that it caused substantial harm or
prejudice to . . . her rights.” Id. AJ Mehan found that plaintiff failed to carry
her burden.58 Upon reviewing the record, the Court agrees with the AJ’s
conclusion. Plaintiff did not even submit the policy that the VA allegedly
violated, let alone establish that the VA would have reached a different
conclusion if it had followed its procedures. Consequently, defendant is
entitled to summary judgment on this claim.
B.

Discrimination Claims

On her discrimination claims, plaintiff is entitled to “trial de novo.”
5 U.S.C. § 7703(c). The Court is not limited to the administrative record, and
the parties may submit “additional evidence.”

Wiggins v. U.S. Postal

Service, 653 F.2d 219, 221 (5th Cir. 1981). Plaintiff did not come forward
with any new evidence, apparently relying solely on the administrative
record. On its part, defendant provided several affidavits and plaintiff’s
responses to its interrogatories.

58

Id. at 327-28 (Initial Decision at 31-32).
15

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1.

Reasonable Accommodation

In her first discrimination claim, plaintiff alleges that the VA failed to
provide her with reasonable accommodations.

The Rehabilitation Act

(“RA”) and the Americans with Disabilities Act (“ADA”) prohibit
employment discrimination against qualified individuals with disabilities.
Kemp v. Holder, 610 F.3d 231, 234 (5th Cir. 2010). The two acts govern
different entities—the RA governs federal employment and the ADA governs
private employment—but they are “judged under the same legal standards.”
Id. (citing 42 U.S.C. § 12131(1); 29 U.S.C. § 794(a)). The RA expressly states
that the standards for employment discrimination complaints are those
under the ADA. 29 U.S.C. § 791(f).

The Fifth Circuit has found that

jurisprudence interpreting a section of one act is applicable to the other.
Kemp, 610 F.3d at 234 (quoting Delano-Pyle v. Victoria County, Tex., 302
F.3d 567, 574 (5th Cir. 2002)).
A claim for failure to provide reasonable accommodation includes
three elements: (1) the plaintiff is a “qualified individual with a disability;”
(2) the disability and its consequential limitations were “known” by the
employer;

and

(3)

the

employer

failed

to

make

“reasonable

accommodations” for such known limitations. Feist v. La., Dep’t of Justice,
Office of the Att’y Gen., 730 F.3d 450, 452 (5th Cir. 2013).
16

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A “qualified individual with a disability” is “an individual with a
disability who, with or without reasonable accommodation, can perform the
essential functions of the employment position that such individual holds or
desires.” 42 U.S.C. § 12111(8). To establish a disability, plaintiff must show
that she (1) has “a physical or mental impairment that substantially limits
one or more major life activities;” (2) has “a record of such an impairment;”
or (3) is “regarded as having such an impairment.” Id. at § 12102(1). In the
ADAAA, Congress amended the ADA to “reject” the U.S. Supreme Court’s
restrictive interpretation of a substantial limitation and to state that “to be
substantially limited in performing a major life activity under the ADA ‘an
individual must have an impairment that prevents or severely restricts the
individual from doing activities that are of central importance to most
people’s daily lives.’” PL 110–325 at § 2(b)(4)-(5) (citing Toyota Motor Mfg.,
Kentucky, Inc. v. Williams, 534 U.S. 184 (2002)). The EEOC’s implementing
regulations provide a non-exhaustive list of major life activities, which
include “caring for oneself, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working.” 29 C.F.R. § 1630.2(i).
Plaintiff’s argument is focused solely on her inability to type. But no
court has ever said that typing, on its own, is a major life activity. Indeed, at
least two courts—including the Ninth Circuit and this Court—have expressly
17

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found otherwise. See Thornton v. McClatchy Newspapers, Inc., 292 F.3d
1045, 1046 (9th Cir. 2002) (stating that the court is “unpersuaded that
[plaintff’s] inability to continuously keyboard or write is within the confines
of . . . a ‘substantial limitation’”); Picard v. St. Tammany Par. Hosp., 611 F.
Supp. 2d 608, 615 (E.D. La. 2009) (“[A]n inability to type, standing alone, is
not sufficient to show that a plaintiff is disabled.”). Additionally, even if
plaintiff had argued that she was limited from working—a major life activity
listed under the EEOC’s regulations—she fails to create an issue of fact on
this question. To establish that she is limited from working, plaintiff must
show “that she was substantially limited in performing a class of jobs or
broad range of jobs in various classes as compared to most people with
comparable training, skills, and abilities.” Allen v. SouthCrest Hosp., 455 F.
App’x 827, 835 (10th Cir. 2011) (holding that a plaintiff must make this
showing “even after the enactment of the ADAAA and the modified EEOC
regulations”).

Plaintiff did not submit any evidence on this point.

Consequently, she has failed to create an issue of material fact as to whether
she is “substantially limited” from a “major life activity.”
For the same reasons, even if there is a “record of” her physical
impairment, there is no issue of material fact as to whether the impairment
was substantially limiting. Finally, plaintiffs who are only “regarded as”
18

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disabled are not entitled to accommodations. 42 U.S.C. § 12201(h) (stating
that an employer “need not provide a reasonable accommodation . . . to an
individual who meets the definition of disability” solely under the regarded
as disabled definition). Accordingly, plaintiff has failed to create an issue of
fact as to whether her alleged physical impairment is a disability that could
support her reasonable accommodation claim.
As to her alleged mental impairment, plaintiff did not argue, much less
introduce evidence to establish an issue of material fact, that it limited a
major life activity. See id. at § 12102(1). The Court finds that plaintiff has
not created an issue of material fact as to whether she is disabled.
Accordingly, the Court must grant defendant’s motion for summary
judgment on this claim.
2.

Retaliation

Title VII generally prohibits discrimination against an employee on the
basis that she has engaged in protected activity. See 42 U.S.C. § 2000e-3(a).
Although the sections of Title VII that apply to federal employees do not
expressly prohibit retaliation, the Fifth Circuit has held that Ҥ 2000e-16 bars
retaliation” against federal employees as well. Brazoria Cnty. v. E.E.O.C.,
391 F.3d 685, 690 (5th Cir. 2004). Here, plaintiff argues that the VA
retaliated against her because she brought an EEOC complaint for failure to
19

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reasonably accommodate. 59 To establish a prima facie case for unlawful
retaliation, plaintiff must show (1) that she engaged in activity protected by
Title VII, (2) that an adverse employment action occurred, and (3) that a
causal link existed between the protected activity and the adverse
employment action. Long v. Eastfield Coll., 88 F.3d 300, 305 (5th Cir. 1996)
(quoting McMillan v. Rust College, Inc., 710 F.2d 1112, 1116 (5th Cir.1983)).
The McDonnel Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973),
framework applies to Title VII unlawful retaliation cases. As such, if plaintiff
establishes a prima facie case, the burden shifts to the defendant to
“articulate a legitimate, non-retaliatory reason for the adverse employment
action.” Long, 88 F.3d at 305. If the defendant produces evidence that
would “permit the conclusion that the adverse employment action was
nondiscriminatory,” the burden shifts to the plaintiff to show that “but for”
the protected activity, the adverse employment action would not have
occurred.

Id. at 305 & n.4.

To avoid summary judgment on but-for

causation, plaintiff must demonstrate “a conflict in substantial evidence” on
the issue. Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 660 (5th Cir.
2012) (“Evidence is ‘substantial’ if it is of such quality and weight that
reasonable and fair-minded men in the exercise of impartial judgment might

59

See R. Doc. 38-2 at 325-27 (Transcript at 29-31).
20

Case 2:18-cv-14180-SSV-MBN Document 51 Filed 11/19/20 Page 21 of 23

reach different conclusions.” (quoting Long, 88 F.3d at 308)). The Fifth
Circuit has also described this ultimate issue as a requirement that plaintiff
show that the defendant’s stated reason is a “pretext.” Lyons v. Katy Indep.
Sch. Dist., 964 F.3d 298, 306 (5th Cir. 2020).
Even assuming that plaintiff has established a prima facie case for
retaliation, her claim still fails. Defendant’s stated reason for terminating
her—unacceptable performance—is legitimate and nondiscriminatory. See
Standley v. Rogers, 202 F. Supp. 3d 655, 671 (W.D. Tex. 2016), aff’d, 680 F.
App’x 326 (5th Cir. 2017) (finding that removal for unacceptable
performance is a legitimate, nondiscriminatory reason).

Defendant

produced two documents to establish this point: the proposed and final
removals. They expressly state that the reason for Perry’s termination is
“unacceptable performance.”60 The Court finds that defendant carried its
burden of showing a legitimate, nondiscriminatory reason for terminating
plaintiff.
Therefore, plaintiff bears the burden of showing that her EEO
complaint was the “but for” cause of the removal. Long, 88 F.3d at 308.
Plaintiff makes two arguments in her attempt to establish but-for causation.

R. Doc. 38-2 at 22-26 (Proposed Removal); R. Doc. 38-2 at 27-30
(Removal).
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60

Case 2:18-cv-14180-SSV-MBN Document 51 Filed 11/19/20 Page 22 of 23

First, she contends that but for the defendant’s failure to reasonably
accommodate her, her performance would have never faltered. 61 Second, she
argues that the temporal proximity between her EEO complaint and the
beginning of her PIP lead to an “inference” of causation. 62
The first argument is inapposite. Even if she could prove that her
performance would have risen to an acceptable level given a different
accommodation, this would not satisfy her burden of showing pretext. She
must show that her protected activity—filing an EEO complaint—led to her
termination.

This

argument

essentially

restates

her

reasonable

accommodation claim, which the Court rejected above.
As to her second argument, that the Court should infer causation
because of the temporal proximity between the EEO complaint and the PIP,
this argument fails. The Fifth Circuit has specifically held that “but for
causation . . . cannot be established by temporal proximity alone.”
Hernandez, 670 F.3d at 660. Plaintiff, relying on Lyons, 964 F.3d at 306,
argues that temporal proximity is enough. But she misconstrues the Lyons
court’s decision.

There, the Fifth Circuit held that evidence showing

temporal proximity between a plaintiff’s protected action and an adverse

61
62

R. Doc. 47 at 8.
Id. at 8-9.
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Case 2:18-cv-14180-SSV-MBN Document 51 Filed 11/19/20 Page 23 of 23

employment activity may satisfy the causation element for a prima facie
retaliation claim. Id. But the court also stated that temporal proximity “is
insufficient to demonstrate pretext.” Id. at 306-07. Because Perry has not
submitted any other evidence on this issue, she has not created an issue of
material fact on the question of pretext.
For the foregoing reasons, plaintiff’s retaliation claim fails. The Court
must grant defendant’s motion for summary judgment on this claim.

IV.

CONCLUSION
The Court GRANTS defendant’s motion for summary judgment.

Plaintiff’s complaint is DISMISSED WITH PREJUDICE.

19th
New Orleans, Louisiana, this _____ day of November, 2020.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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