Deeds v. State Farm Mutual Automobile Insurance Company

Filing 46

ORDER & REASONS granting 25 Motion for Summary Judgment. Signed by Honorable Eldon E. Fallon on 4/5/12. (ALA)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

CHRISTINE DEEDS
VERSUS
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY

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CIVIL ACTION
NO. 10-142
SECTION "L"(2)

ORDER & REASONS
The Court has pending before it Defendant State Farm Mutual Automobile Insurance
Company (“State Farm”)’s motion for summary judgment. (Rec. Doc. 25). The Court has
reviewed the briefs and the applicable law and now issues this Order and Reasons.
I.

Background
This disability discrimination and retaliation case arises out of Plaintiff Christine Deeds’s

employment with Defendant State Farm. Plaintiff has been diagnosed with Irritable Bowel
Syndrome (“IBS”) and suffered from that condition at all times relevant to this case. Plaintiff
takes prescription and over-the-counter medication for her condition, including Bentyl, Welchol,
and Immodium, as well as Citrucel fiber which Plaintiff would mix with water in the kitchen at
work. Plaintiff states that she suffers from diarrhea every time after she eats a meal, as well as
other symptoms and side effects from her medication that require frequent trips to the bathroom.
Plaintiff began employment with State Farm on August 1, 1994. The parties do not
dispute the sequence of events that led to Plaintiff’s termination, although Plaintiff disputes
whether Defendant’s employment actions were in fact justified. Prior to March 1, 2007,
Plaintiff’s job primarily involved handling and filing mail. On March 1, 2007, she transferred to

a different department and began working as a Claims Service Assistant (“CSA”) under a new
manager, Matt Konzem. Plaintiff’s duties as a CSA included completing “activities” assigned by
a computerized task “queue.” The record reflects that Plaintiff’s former duties did not involve
working with the “queue” system.
On December 6, 2007, Plaintiff received the lowest possible ratings in “Results” and
“Competencies,” two key areas of her 2007 end-of-cycle job performance review.1 The review
noted that her “production numbers steadily trended downward from July through October even
though her duty basically remained unchanged” and noted that Konzem warned her this “was not
acceptable.” In the first two weeks of January, Konzem began tracking and reporting on
Plaintiff’s daily productivity, which failed to show any improvement following the December
job review. On January 11, 2008, Konzem sat with Plaintiff at her work station to observe her
work process and make suggestions on how she might improve.
On January 28, 2008, there was a meeting between Plaintiff, Konzem, and Tim
Wooldridge, a regional manager superior to Konzem. The parties dispute whether Konzem or
Plaintiff requested the meeting, and whether the purpose of the meeting was for Plaintiff to
notify Wooldridge about Konzem’s treatment of her, or to speak with Plaintiff about her poor
performance. Regardless, at the meeting Plaintiff was given a memorandum advising her that
her work performance was unacceptable and needed to improve, but Plaintiff refused to sign the
memorandum in acknowledgment of receipt.
On February 25, 2008, Konzem again met with Plaintiff to discuss Plaintiff’s

1

Again, Plaintiff admits that she received these reviews but denies that they were
warranted by the quality and quantity of her work.
2

productivity, her interactions with her coworkers, and her gaps in production. The parties
dispute whether Plaintiff’s production improved after this meeting. Another meeting occurred
on March 4, 2008. On March 7, 2008, Plaintiff was terminated.
During the relevant periods of her employment with State Farm, Plaintiff had an
additional job as a part-time retail salesperson at Dillard’s department store. From November 1,
2007 through March 7, 2008, she worked for Dillard’s for a total of 248 hours and 47 minutes,
and from anywhere between three and 21 hours each week, on top of her full-time employment
at State Farm.
Plaintiff filed suit in the United States District Court for the Eastern District of Louisiana,
alleging that Defendant violated the Americans with Disabilities Act (“ADA”) by refusing her an
accommodation and retaliating against her for requesting that accommodation or complaining
about her supervisor.
II.

Present Motion
Defendant now moves for summary judgment on all of Plaintiff’s claims. With respect to

the failure-to-accommodate claim, Defendant contends that Plaintiff cannot show that she was
disabled within the meaning of the ADA or that she was otherwise qualified for her job.
Defendant also argues that, even if those other elements are satisfied, it accommodated Plaintiff
in all the ways that she requested. With respect to the retaliation claim, Defendant argues that
Plaintiff cannot show that her request for an accommodation was causally linked to her
termination.

3

In an unnecessarily belligerent opposition,2 Plaintiff argues that there are fact questions
regarding whether she was disabled, whether she was productive enough to be otherwise
qualified for her job, whether Defendant failed to accommodate her IBS, and whether Defendant
fired her because she requested an accommodation. Plaintiff essentially argues that Defendant
and its employees are not credible, that the trier of fact could believe her story over State Farm’s,
and that her version of the facts suffices to state claims under the ADA.
III.

Law & Analysis

A.

Summary Judgment
A district court can grant a motion for summary judgment only when the “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). When considering a motion for summary
judgment, the district court “will review the facts drawing all inferences most favorable to the
party opposing the motion.” Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir.
1986). The court must find “[a] factual dispute . . . [to be] ‘genuine’ if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party . . . [and a] fact . . . [to be]
‘material’ if it might affect the outcome of the suit under the governing substantive law.” Beck v.
Somerset Techs., Inc., 882 F.2d 993, 996 (5th Cir. 1989) (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)).
“If the moving party meets the initial burden of showing that there is no genuine issue of
material fact, the burden shifts to the non-moving party to produce evidence or designate specific

2

Plaintiff’s counsel frequently resorts to ad hominem rhetoric and hypberbole. E.g.,
“...the utter hypocrisy of any State Farm investigation....”; “...ostrich in the sand posturing...”;
“Such fakery only confirms State Farm [sic] mendacity.” (Rec. Doc. 30 at 7, 11, 21).
4

facts showing the existence of a genuine issue for trial.” Engstrom v. First Nat'l Bank of Eagle
Lake, 47 F.3d 1459, 1462 (5th Cir. 1995). The mere argued existence of a factual dispute will
not defeat an otherwise properly supported motion. See Anderson, 477 U.S. at 248. “If the
evidence is merely colorable, or is not significantly probative,” summary judgment is
appropriate. Id. at 249-50 (citations omitted).
B.

Failure to Accommodate Under the ADA
“To establish a prima facie case of discrimination based on failure to accommodate a

disability, [a plaintiff] is required to show: (1) the employer is covered by the statute; (2) she is
an individual with a disability; (3) she can perform the essential functions of the job with or
without reasonable accommodation; and (4) the employer had notice of the disability and failed
to provide accommodation.” Mzyk v. N.E. Indep. Sch. Dist., 397 F. App’x 13, 15 n.1 (5th Cir.
2010). Defendant challenges Plaintiff’s ability to establish a prima facie case as to the elements
of disability, qualification, and failure to accommodate.
1)

Disability

At all times in question, the ADA defined “disability” as follows:
(2) Disability
The term “disability” means, with respect to an individual–
(A) a physical or mental impairment that substantially limits one or more
major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
42 U.S.C. § 12102 (2007).3 The statutory definition of “disability” “‘needs to be interpreted

3

Congress amended the ADA after all of the relevant conduct in this case; the Fifth
Circuit has held that those amendments are not retroactive, and accordingly the Court will apply
the law in effect at the time of the alleged conduct without noting each instance in which it has
been superseded by statute. See Carmona v. Sw. Airlines Co., 604 F.3d 848, 857 (5th Cir. 2010)
5

strictly to create a demanding standard for qualifying as disabled.’” Waldrip v. Gen. Elec. Co.,
325 F.3d 652, 654 (5th Cir. 2003) (quoting Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S.
184, 197 (U.S. 2002)). The Court must “conduct a rigorous and carefully individualized inquiry
into [Plaintiff’s] claimed disability to fulfill [the] statutory obligation to determine the existence
of disabilities on a case-by-case basis.” Id. (quotation omitted).
Plaintiff argues under the first prong that she had “a physical or mental impairment that
substantially limits one or more major life activities.”4 Disability under that prong requires three
showings: that Plaintiff had an “impairment,” that a “major life activity” was limited by the
impairment, and that the impairment “substantially limited” that major life activity. See
Waldrip, 325 F.3d at 654. An impairment was defined at the time as:
(1) Any physiological disorder, or condition, cosmetic disfigurement, or
anatomical loss affecting one or more of the following body systems:
neurological, musculoskeletal, special sense organs, respiratory (including speech
organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and
lymphatic, skin, and endocrine; or

(applying prior version of ADA to claims arising before January 1, 2009).
4

Plaintiff also argues, in a single sentence, that Defendant “regarded” her has having a
disability, under 29 U.S.C. § 12102(1)(C). (P’s Opp. at p. 7). “There are two apparent ways in
which individuals may fall within this statutory definition: (1) a covered entity mistakenly
believes that a person has a physical impairment that substantially limits one or more major life
activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment
substantially limits one or more major life activities.” Sutton v. U. Air Lines, Inc., 527 U.S. 471,
489 (1999). “In both cases, it is necessary that a covered entity entertain misperceptions about
the individual–it must believe either that one has a substantially limiting impairment that one
does not have or that one has a substantially limiting impairment when, in fact, the impairment is
not so limiting.” Id. (emphasis added). The plaintiff must also show that “the impairment, if it
existed as perceived, would be substantially limiting.” McInnis v. Alamo Cmty. Coll. Dist., 207
F.3d 276, 281 (5th Cir. 2000).
Plaintiff has not articulated any misperception by Defendant regarding her symptoms that
caused Defendant to incorrectly believe that she had a substantially limiting impairment. The
“regarded as” prong does not apply in this case.
6

(2) Any mental or psychological disorder, such as mental retardation, organic
brain syndrome, emotional or mental illness, and specific learning disabilities.
29 C.F.R. § 1630.2(h).5
The impairment must also affect a “major life activity.” “Major life activities” are “those
activities that are of central importance to daily life, and activities that are central to the life
process itself.” Waldrip, 35 F.3d at 655 (quotations omitted). At the time in question,
regulations defined a “major life activity” as including “caring for oneself, performing manual
tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 29 C.F.R. §
1630.2(i). Finally, the impairment must substantially limit that major life activity. This
requirement:
is the linchpin of § 12102(2)(A). Without it, the ADA would cover any minor
impairment that might tangentially affect major life activities such as breathing,
eating, and walking. For this reason, an impairment must not just limit or affect,
but must substantially limit a major life activity.
Waldrip, 324 F.3d at 655 (emphasis in original). This is “a demanding standard for qualifying as
disabled.” Toyota, 534 U.S. at 197. “Permanency, not frequency, is the touchstone of a
substantially limiting impairment.” Waldrip, 324 F.3d at 655 (quotation omitted).
With respect to the impairment element, Plaintiff provides competent summary judgment
evidence in the form of medical records and testimony from herself and her treating physician
that she had been diagnosed with irritable bowel syndrome and suffered from symptoms
including frequent diarrhea. A trier of fact could find that this testimony is credible and that
Plaintiff’s IBS was an impairment.

5

The regulations are not controlling or entitled to Chevron deference, but the Fifth Circuit
considers them to be persuasive authority. See Waldrip, 325 F.3d at 655 n.1.
7

With respect to the remaining elements, that Plaintiff’s impairment substantially limited a
major life activity, the parties disagree. A genuine question of fact as to these elements will
preclude summary judgment. See Cutrera v. Bd. of Supervisors of La. St. Univ., 429 F.3d 108,
112 (5th Cir. 2005). A number of opinions have addressed ADA claims premised on IBS, but
the cases are fact-intensive and most are distinguishable in one way or another from the present
circumstances. In Branch v. City of New Orleans, the Fifth Circuit affirmed a jury verdict
against a plaintiff alleging discrimination on the basis of her IBS. 78 F.3d 582, 1996 WL 60610
(5th Cir. 1996). The Circuit held that the plaintiff’s “attacks of diarrhea and abdominal
discomfort” did not substantially limit any of her major life activities. 1996 WL 60610, at *4.
But Branch was an appeal from a motion for judgment as a matter of law or for new trial, after
the plaintiff had a chance to present her evidence to a jury. Id. at *2. Moreover, the jury verdict
stood because the record established that the plaintiff experienced only “flare-ups ... about once a
year ... only for a few days.” Id. at *4. Thus, Branch is procedurally distinguishable and also
involved evidence of less frequent IBS “flare-ups.”
In Atencio v. Joint Jerome School Dist. No. 261, the court granted summary judgment
against an ADA plaintiff; although the plaintiff testified that she “had to use the restroom
frequently, ... had to be careful of her diet, and ... had to be careful when doing an activity ... to
note where the restroom was,” those limitations did not rise to the level of substantial
impairment of her ability to work and did not. — F. Supp. 2d —, 2011 WL 3439940, at *8-9
(D. Idaho Aug. 8, 2011). The court noted that the “symptoms are intermittent” and that the
plaintiff did not articulate how the impairments interfered with any other life activities. See id. at
*8 (emphasis added). In Pedroza v. Autozone, Inc., summary judgment was granted because the

8

plaintiff did not “marshal sufficient support for his position” that “his impaired restroom habits
constitute a major life activity for purposes of the ADA.” 536 F. Supp. 2d 679, 696-97 (W.D.
Tex. 2008). And in Hall v. Principi, summary judgment was granted on an analogous
Rehabilitation Act disability claim because “Plaintiff has offered no summary judgment evidence
on the issue of disability in general or as to his irritable bowel syndrome in particular.” No. L03-CV-90, 2006 WL 870190, at *8 (S.D. Tex. Apr. 3, 2006).
In opposition, Plaintiff distinguishes the cases cited above but does not cite any cases
denying summary judgment on IBS-based ADA claims. Such cases do exist, and have denied
summary judgment or otherwise found substantial impairment of a major life activity on the
basis of bowel disorders. See Joffer v. Premier Bankcard, Inc., 2008 WL 2371149, at *6-7
(D.S.D. June 6, 2008) (denying summary judgment and citing authorities). In Joffer, the plaintiff
testified that she “had frequent bowel movements” and “that many times she could not hold the
diarrhea and, as a result, would go to the bathroom in her pants.” Id. at *7.
Defendant, citing Branch, Atencio, Pedroza, and Hall, argues that as a matter of law
Plaintiff’s IBS did not substantially limit any major life activity. It relies heavily on the
deposition of Plaintiff’s treating physician, Dr. Robert Be, who testified that he did not know of
a medical reason why Plaintiff could not work an eight hour day if she had free access to a
restroom. (Be Dep. at 9:17-24). In addition, Defendant cites the undisputed fact that at all
relevant times Plaintiff maintained an additional part-time job at a department store working as
many as twenty additional hours a week.
In opposition to summary judgment, Plaintiff argues that her IBS limited her in the major
life activities of eating and walking. Eating and walking are major life activities for the purpose

9

of the ADA. Waldrip v. Gen. Elec. Co., 325 F. 3d at 652. Plaintiff argues that eating food and
taking her prescribed medication caused diarrhea which required her to have access to a
bathroom, and that her symptoms impaired her ability to eat and walk. The record is devoid of
meaningful evidence demonstrating a substantial and permanent limitation on Plaintiff’s ability
to walk; indeed, Plaintiff testified that she could “walk fast” to get to the ladies’ room. (P’s
Dep., at 141:10-23). Thus, that major life activity was not substantially impaired by her IBS.
With respect to the major life activity of eating, Plaintiff argues in her opposition brief
that “any meal triggers” her IBS symptoms. (P’s Opp. at 1). But Plaintiff did not cite to specific
record evidence corroborating that absolute relationship between eating a meal and having
diarrhea. At her deposition, Plaintiff stated that the diarrhea was not always a consequence of
eating:
Q.

A.

During the time period that you were being supervised by Matt Konzem,
can you tell me how frequently or how often you would have to leave your
workstation to go to the bathroom for diarrhea?
I can’t – I don’t believe I can give you a good answer, but that I can tell
you without a doubt that, after I eat food, like lunch, you know, after I
would eat, sometimes I had to go to the restroom because of diarrhea.
And if we – you know, if we ever had anything in the morning, like
sometimes there were things like – that the activities association would
put on and they would have, like, a little breakfast, you know, at the office
and just a treat, you know for everybody. And I can remember eating a
chicken – a biscuit and chicken from Chick-fil-A that was just a treat that
everyone had – you know, was given. So once in a while in the morning,
you know. But mostly in the afternoon at work was, you know, the time
when I would have diarrhea.

(P’s Dep. 134:16-135:13, Rec. Doc. 30-2 at 35) (emphasis added). Plaintiff is in the best
position to state the relationship between eating and her diarrhea, and she expressly stated she
could not “give ... a good answer” to how often she had diarrhea at work. (Id.). In fact, she later
characterized her IBS as constant but her diarrhea as “episodic”:
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Q.

And if we go down – let’s see, looks like three lines, it says “May be
episodic rather than a continuing period of incapacity.” Do you see that.
A.
Yes, sir.
Q.
Does that apply to you?
[Objection omitted]
A.
Absolutely. Absolutely episodic. The condition is constant, but that the –
the symptom – for instance, having diarrhea, that is episodic, you know.
And Dr. Be would probably say that there was a time when I was much
healthier, even with the condition. There was a huge period where I was
healthy, and then it changed.
At least I can say my problem there, God willing, it will always change.
(P’s Dep. at 311:10-312:8, Rec. Doc. 30-3 at 37).
Plaintiff’s proffered evidence arguably supports an inference of more frequent diarrhea
flare-ups than the plaintiff in Branch, Atencio, and other cases cited by Defendant. However, her
evidence falls short of the evidence of severe impairment in Joffer and the cases cited therein.
Ultimately, the summary judgment record, even read in Plaintiff’s favor, establishes only that
Plaintiff had episodic, intermittent diarrhea as a result of her IBS. This condition did not prevent
Plaintiff from working an additional part-time job at a department store on top of her full-time
employment with Defendant. While her IBS may have inconvenienced Plaintiff’s ability to eat
by sometimes causing subsequent diarrhea, Plaintiff has not presented summary judgment
evidence that she had any substantial and permanent limitation of a major life activity, whichi s a
requirement under the ADA. In the absence of a genuine fact issue as to that element, Plaintiff
cannot establish her prima facie case that she was disabled within the meaning of the operative
version of the ADA. Summary judgment is accordingly appropriate with respect to her failureto-accommodate claim.
2)

Failure to Grant a Reasonable Accommodation

Even if Plaintiff had raised a fact issue regarding disability, she would meet a formidable

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hurdle in establishing a genuine fact issue that Defendant failed to grant her a reasonable
accommodation. A defendant violates the ADA by “not making reasonable accommodations to
the known physical or mental limitations of an otherwise qualified individual with a disability
who is an applicant or employee, unless such covered entity can demonstrate that the
accommodation would impose an undue hardship on the operation of” the defendant. 42 U.S.C.
12112(b)(5)(A) (2008). At the relevant time “reasonable accommodation” was defined as
including:
(A)
(B)

making existing facilities used by employees readily accessible to and
usable by individuals with disabilities; and
job restructuring, part-time or modified work schedules, reassignment to a
vacant position, acquisition or modification of equipment or devices,
appropriate adjustment or modifications of examinations, training
materials or policies, the provision of qualified readers or interpreters, and
other similar accommodations for individuals with disabilities.

42 U.S.C. § 12111(9) (2008). Generally the disabled employee must inform the employer of the
need for an accommodation. See, e.g., Cutrera, 429 F.3d at 112. “Once such a request has been
made, the appropriate reasonable accommodation is best determined through a flexible,
interactive process that involves both the employer and the qualified individual with a
disability.” Id. (quotation omitted). “On the other hand, if the employee does not participate in
the process in good faith, he is precluded from recovering from the employer.” Rizzo v.
Children’s World Learning Ctrs., Inc., 173 F.3d 254, 266 (5th Cir. 1999) (emphasis in original).
“An employer is not required to create ‘light duty’ jobs to accommodate.” Foreman v. Babcock
& Wilcox & Co., 117 F.3d 800, 809 (5th Cir. 1997) (citing Turco v. Hoechst Celanese Chem.
Grp., Inc., 101 F.3d 1090, 1094 (5th Cir. 1996)); accord Humbles v. Principi, 141 F. App’x 709,
713 (10th Cir. 2005) (“An employer is not required to accommodate a disabled worker by

12

modifying or eliminating an essential function of a job ... [or] by reallocating work duties such
that other employees are forced to work harder.”).
Defendant argues that it granted Plaintiff the only accommodation for her IBS that she
ever requested or that her doctor ever recommended: ready access to a bathroom. Dr. Be
testified that the only accommodation Plaintiff needed was “access to a bathroom.” (Be Dep.,
17:24-18:23, Rec. Doc. 25-4 at 5). The record clearly establishes that Plaintiff’s cubicle was
located close to a bathroom which she could access. Thus, there is no genuine dispute that an
accommodation in the form of access to a bathroom was granted.
In opposition, Plaintiff argues that she requested more than mere access to a bathroom
and was denied that accommodation. She characterizes the issue as “whether State Farm
afforded Christine Deeds adequate access to use the restroom without repercussions.” (Rec.
Doc. 30 at 9) (alterations omitted and emphasis added). But Plaintiff has not cited any record
evidence that Defendant ever directly limited the number of trips she could take to or the amount
of time that she could spend in the bathroom or kitchen.6 Nor does the record reflect any
instance in which Plaintiff needed to use the bathroom but was prevented or even discouraged
from doing so. Accordingly, as best the Court can discern, the “repercussions” for using the
bathroom are the workplace criticism for lack of productivity and eventual termination because

6

For example:

Q.

A.

Did anyone at State Farm ever say to you or communicate to you that you
should record any time that you spent away from your desk for medical
reasons or medicinal reasons of increments more than 15 minutes?
No, sir, they didn’t.

(P’s Dep. at 144:6:-11, Rec. Doc. 30-2 at 37).
13

of lack of productivity. Essentially, Plaintiff claims that she requested and was denied use of the
bathroom for unlimited periods of time without being subject to criticism for any impact it had
on her work productivity.
This necessarily leads to two questions: whether there is a genuine factual dispute that
Plaintiff actually requested the accommodation she now contends she was denied, and whether
that requested accommodation was reasonable.
With respect to whether Plaintiff ever began the interactive process to request bathroom
access “without repercussions,” the record is muddled. On the one hand, when asked what
Defendant could have done to “accommodate” her IBS, Plaintiff did not articulate anything
relating to her condition or her bathroom use, but rather suggested transfer to a different
manager:
Q.
A.

Can you think of anything else that State Farm could have done to
accommodate your medical condition?
Aside from moving Matt or moving me and treating me the way other
managers had treated their secretaries when they were feeling badly, right
now, I don’t have anymore words, but that I could probably think about it
and answer more later.

(P’s Dep., 227:12-20). On the other hand, Plaintiff also testified regarding the January 29, 2008
meeting with Konzem and Wooldridge in which something approaching an “accommodation”
was discussed:
Q.

A.

The same question about Tim Wooldridge. Did you ever make any
specific suggestions to Tim Wooldridge about any kind of accommodation
that State Farm could provide to you to help you do your job better?
When we were in the meeting regarding the memorandum, that would
mean Tim Wooldridge, Matt Konzem and myself, the point came up that –
Tim said, “Well, Christine, why don’t you take a 15-minute break, you
know, take your medicine, take care of you and then, you know, take that
break when you need to.”
And I said–I remember saying “I need more than 15 minutes.” But I also
14

look back, and I think I can’t–my body can’t work in a specific time
period, such as like when I was a much younger woman working for
Mervyn’s, and the manager came around and said, “Okay, you take your
break at 2, you take your break at 2:15, you at 3, Dan at 3:15. I couldn’t
possibly time when I had to go to the restroom. Certainly I–I want you to
know that I recognize that Tim Wooldrige mentioned–you know, offered
and said, “Take yourself a 15-minute break.” But I think what he had in
mind was more of a limited and healthier idea of what a healthy person
can do, and I was in a horrible situation with my IBS. And when I said I
need more than 15 minutes, I didn’t get a response.
(P’s Dep., 151:6-24) (emphasis added).7 But Wooldridge did not suggest a limit on the number
of breaks Plaintiff could take. (Id. at 154:2-5). The Court will assume for the sake of argument
that this raises a factual issue as to whether Plaintiff initiated an interactive process requesting
more time to use the bathroom.
The next issue is whether the accommodation Plaintiff sought is reasonable. The record
is devoid of any express limitations that Defendant imposed on Plaintiff’s ability to use the
restroom. Thus, the accommodation Plaintiff apparently pursued was the ability to use the
bathroom at will, without being subject to comment or criticism for the effect that sustained time
in the bathroom had on her workplace productivity. The Court doubts whether, as a matter of
law, the ADA requires an employer to accommodate a disabled employee by refraining from
requiring the employee to comply with basic productivity requirements applicable to all
employees. Although the facial unreasonableness of that requested accommodation is probably
also sufficient to defeat Plaintiff’s claim for a failure to accommodate, the Court need not resolve

7

There is also evidence in the record that Plaintiff may not have been entirely
forthcoming and cooperative with Konzem in working with Defendant to reach a reasonable
accommodation for time to use the bathroom. (See P’s Dep. at 146:16-150:16, 208:8-9). Thus,
Plaintiff may have substantial problems at trial convincing the trier of fact that she actually
requested a reasonable accommodation that was not provided.
15

that question. As noted above, Plaintiff has not carried her burden to show that she was disabled
under the ADA.
C.

ADA Retaliation Claim

Finally, Defendant also moves for summary judgment on Plaintiff’s ADA retaliation
claim. To show an unlawful retaliation, a plaintiff must establish a prima facie case of (1)
engagement in an activity protected by the ADA, (2) an adverse employment action, and (3) a
causal connection between the protected act and the adverse action. Seaman v. CSPH, Inc., 179
F.3d 297, 301 (5th Cir. 1999). To pursue a retaliation claim, Plaintiff need not actually be
disabled or a member of a protected class, but rather must have a good faith belief that the ADA
has been violated. Tabatchnik v. Continental Airlines, 262 F. App’x 674, 676 (5th Cir. 2008). If
Plaintiff establishes the prima facie case, Defendant must come forward with a legitimate, nondiscriminatory reason for the adverse employment action. Id. If that reason is provided, Plaintiff
then must produce evidence that the proffered reason is a pretext and that but for her protected
activity, the adverse employment action would not have occurred. Id. “Ultimately, the
employee must show that ‘but for’ the protected activity, the adverse employment action would
not have occurred.” Seaman, 179 F.3d at 301; accord Tabatchnik, 262 F. App’x at 676.
To establish “but-for” causation and defeat summary judgment, Plaintiff “must
demonstrate a conflict in substantial evidence on the ultimate issue of ‘but for’ causation.”
Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 658 (5th Cir. 2012) (quotation and some
alterations omitted). “Evidence is ‘substantial’ if it is of such quality and weight that reasonable
and fair-minded men in the exercise of impartial judgment might reach different conclusions.”
Id. (quotation omitted). “[T]o be persuasive evidence, temporal proximity must be very close,

16

and importantly ... temporal proximity alone, when very close, can in some instances establish a
prima facie case of retaliation.” Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 808 (5th
Cir. 2007) (emphasis in original).8 But the Fifth Circuit “affirmatively reject[s] the notion that
temporal proximity standing alone can be sufficient proof of but for causation.” See id. Thus,
while “very close” temporal proximity may be enough to establish the prima facie case, if the
defendant articulates a legitimate, non-discriminatory reason for termination, that close
proximity alone will not suffice to show a genuine dispute of material fact. See Hernandez, 670
F. 3d at 658 (“Temporal proximity, standing alone, is not enough.”).
Defendant concedes for the sake of argument that Plaintiff has sufficient summary
judgment evidence on the protected activity and adverse employment action elements of her
prima facie case, but disputes whether Plaintiff can show a but for causal connection between the
two. Defendant also articulates Plaintiff’s documented unsatisfactory work history, low
productivity, and difficulties interacting with co-workers as a legitimate, non-discriminatory
reason for terminating her employment.
In opposition, Plaintiff argues that the requisite causal link can be inferred from temporal
proximity between her termination and her request for an accommodation, and from the alleged
lack of foundation for criticism of her work productivity. Neither argument is adequately
supported by facts or precludes summary judgment.
With respect to temporal proximity, Plaintiff argues that she requested an
accommodation in January 2008 and was fired in March 2008, and therefore the Court can infer

8

Strong analyzed a Title VII retaliation claim, but the elements of a Title VII and ADA
retaliation claim are identical. See Grubic v. City of Waco, 262 F. App’x 665, 667 n.6 (5th Cir.
2008).
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retaliation from the timeline. This is insufficient. Even if that two-month gap was sufficient to
state her prima facie case, it is Plaintiff’s ultimate burden to show a genuine conflict in
substantial evidence on the causation issue, from which reasonable and fair-minded individuals
could differ as to whether Defendant’s basis for dismissal was pretextual. E.g., Hernandez v.
Yellow Transp., Inc., 670 F.3d at 658. With respect to that burden, “[t]emporal proximity,
standing alone, is not enough.” Id. Moreover, the undisputed record reflects that Defendant
noted Plaintiff’s low productivity in an end-of-cycle job review in December, 2007, before
Plaintiff claims she requested the accommodation. (Rec. Docs. 25-7 at 3, 30-1 at 2). Thus, the
legitimate, non-discriminatory basis for terminating her predates her allegedly protected action,
thus negating any inference that might permissibly be drawn from temporal proximity. The
timeline simply does not warrant any inference of pretext or retaliatory motive.
Plaintiff also disputes Defendant’s conclusion that she was an unproductive worker and
argues that termination on that basis must have been pretextual. However, Plaintiff presents no
affirmative evidence of her productivity to support that contention. Instead of evidence, Plaintiff
presents bombast; she cites long swathes of deposition testimony by her supervisor, points to
purported inconsistencies, and rhetorically asks “whether anyone on Planet Earth, much less a
reasonable juror, would accept” Defendant’s sworn statement at face value. (E.g., Rec. Doc. 30
at 20). But she offers no concrete evidence regarding specific work she did that Defendant did
not credit, and certainly not enough evidence to generate a factual dispute that Defendant’s
reason was mere pretext.
In short, Defendant has articulated a legitimate, non-discriminatory reason for
terminating Plaintiff, namely, lack of productivity. The record is undisputed that Defendant

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articulated this reason to Plaintiff before she requested the accommodation she claims she was
denied, and consistently reiterated the reason to her in the months preceding her termination on
that basis. In response, Plaintiff has not presented substantial evidence that Defendant’s reason
was pretext for firing her because she requested an accommodation. Accordingly, Defendant’s
summary judgment motion is granted with respect to the ADA retaliation claim as well.
IV.

CONCLUSION
Accordingly, for the foregoing reasons, IT IS ORDERED that Defendant’s Motion for

Summary Judgment (Rec. Doc. 25) is GRANTED. All of Plaintiff’s claims are dismissed WITH
PREJUDICE.
New Orleans, Louisiana, this 5th day of April, 2012.

UNITED STATES DISTRICT JUDGE

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