Hebert v. Ascension Parish School Board

Filing 126

RULING: The 72 Motion for Partial Summary Judgment by Plaintiff and the Defendant's 76 Motion for Summary Judgment are DENIED. Signed by Chief Judge Shelly D. Dick on 8/20/2019. (KAH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

KATINA B. HEBERT

CIVIL ACTION

VERSUS

17-641-SDD-RLB

ASCENSION PARISH
SCHOOL BOARD

RULING
This matter is before the Court on the Motion for Partial Summary Judgment1 by
Plaintiff, Katina B. Hebert (“Plaintiff”).

Defendant, Ascension Parish School Board

(“Defendant”) has filed an Opposition2 to this motion. Also before the Court is the Motion
for Summary Judgment3 filed by Defendant, to which Plaintiff filed an Opposition.4 For
the following reasons, the Court finds that both Plaintiff’s and Defendant’s motions should
be denied.
I.

FACTUAL BACKGROUND
Plaintiff brings this action against her former employer, Defendant, Ascension

Parish School Board, seeking relief under the Americans with Disabilities Act, as
amended 42 U.S.C. § 12101 et seq.5 Plaintiff alleges that she began working for
Defendant in August of 1999 as a first and second grade teacher at St. Amant Primary
School. Plaintiff claims that she was involuntarily transferred to Sorrento Primary School

1

Rec. Doc. No. 72.
Rec. Doc. No. 96.
3
Rec.Doc. No. 76.
4
Rec. Doc. No. 108.
5
Rec. Doc. Nos. 1 and 32.
2

Document Number: 52739 
Page 1 of 37 

in May of 2011 and assigned to teach second and fifth grades.6 Plaintiff alleges that she
“suffers from rhinitis, asthma, psoriasis, bronchospasm, dermatitis, and migraine
headaches due to a longstanding history of exposure to strong odors, chemicals
contained in industrial pollutants, certain cleaning products, perfumes, and other
allergens.7 Plaintiff also claims that she informed Defendant of her disability and resulting
limitations, and she made at least five requests for accommodations between September
21, 2011 and June 1, 2015, prior to her termination.8 Plaintiff contends Defendant fired
her on July 10, 2015 to avoid having to “provide reasonable accommodations to assist
Ms. Hebert in performing her job.”9 Plaintiff moves for partial summary judgment on the
sole issue of whether she is disabled under the ADA.
Defendant moves for summary judgment on all claims asserted by Plaintiff.
Defendant contends Plaintiff is not disabled under the ADA, and she was not qualified for
the job as it “based its decision to terminate plaintiff’s employment as a teacher solely on
objective performance data demonstrating consistent and objectively poor classroom
performance, substandard/failing test scores, and inability to exhibit improvement in
teaching performance despite implementation of enhancement plans.”10 Further,
although Defendant disputes that Plaintiff was entitled to protection under the ADA, it
contends that it provided Plaintiff with reasonable accommodations when requested,
although it acknowledges Plaintiff’s transfer requests were not granted.

Finally,

Defendant contends Plaintiff’s retaliation claim fails as there is no evidence to dispute that

6

Rec. Doc. No. 32, ¶6.
Id. at ¶8.
8
Id. at ¶s 9, 11.
9
Id. at ¶16.
10
Rec. Doc. No. 14, p. 2.
7

Document Number: 52739 
Page 2 of 37 

Plaintiff’s principal contacted Defendant in May 2015 to advise that Plaintiff was
ineffective and to recommend her termination, which is prior to Plaintiff’s email dated June
24, 2015, appealing the denial of her transfer request and the filing of an EEOC complaint.
Thus, according to Defendant, it could not have retaliated against Plaintiff for taking
protected activity that occurred after the decision to terminate Plaintiff was already
initiated.
II.

PREVIOUS EVIDENTIARY RULINGS
The Court made the following evidentiary rulings which narrow the evidence

available for the Court’s consideration of the Parties’ summary judgment motions.
The Court granted Defendant’s Motion in Limine to Strike Plaintiff’s Education
Expert Michael Deshotels and His Report, finding that the testimony of Plaintiff’s
purported education expert, offered to give opinions on the performance evaluations for
teachers under state mandated procedures as compared to Plaintiff, was irrelevant and
unhelpful to the trier of fact.11 The Court noted that, “[w]hile the VAM performance
evaluation method might be subject to criticism, it is undisputed that the APSB was
required to use the State’s legislatively enacted teacher performance evaluation and
criteria,” and any “opinion testimony critical of state mandated performance evaluation
poses an unacceptable risk of juror confusion and is irrelevant.”12
The Court also granted Defendant’s Motion in Limine to Strike Dr. Warshowsky,
Plaintiff’s purported treating physician to be utilized under Rule 26(a)(2)(C) of the Federal
Rules of Civil Procedure.13 The Court excluded Dr. Warshowsky for several reasons,

11

Rec. Doc. No. 114.
Id. at 4-5.
13
Rec. Doc. No. 116.
12

Document Number: 52739 
Page 3 of 37 

including the finding that he: (1) lacked the education, training, and experience to provide
opinion testimony regarding toxicity and exposure and alleged related disabilities based
on his practice as an OB/GYN; (2) admitted in his deposition that the review and analysis
of toxicological information, distances, and exposure levels was information not typically
addressed by physicians in his field of expertise; (3) had no knowledge of the proximity
of the schools at issue in this case to any sources or possible sources of emission or air
pollutants; (4) had no factual information by which to determine if Plaintiff had been
exposed to environmental toxins; (5) admitted that he lacked expertise in toxicology,
environmental sciences, allergies, immunology, neuroscience, or dermatology; (6)
lacked any reliable clinical basis to opine as to the etiology of Plaintiff’s
symptoms/complaints or the nature, extent, and/or cause of any alleged disability; and
(7) examined the Plaintiff only once before she knew she would be terminated by
Defendant and only twice after her termination.14
The Court denied Plaintiff’s Motion in Limine to Exclude the Expert Report and
Testimony of Brian R. Beaubout, finding that Dr. Brian R. Beaubout’s (“Dr. Beaubout”)
proffered opinions “are grounded in his working knowledge and familiarity with Louisiana’s
teacher evaluation and performance requirements,” and his conclusions are “supported
by the evidence and documents” upon which he relied.15
Plaintiff’s Motion in Limine to Exclude the Expert Report and Testimony of Ervin
Ritter was granted in part and denied in part. The Court found that Ervin Ritter (“Ritter”),
a licensed professional engineer, is qualified to give opinion testimony about the air

14
15

Id. at 2-3.
Rec. Doc. No. 115 at 3.

Document Number: 52739 
Page 4 of 37 

quality in the vicinity of the Sorrento and Prairieville primary schools based on his review
of regulatory records and air sampling collected and analyzed.16 However, the Court
excluded any opinions offered by Ritter relating to medical causation, finding that Ritter
is not qualified to testify as to medical causation.17
Finally, the Court denied Plaintiff’s Motion in Limine to Exclude Testimony and
Evidence Regarding the Plaintiff’s Job Performance, finding that the Defendant, should
Plaintiff meet her prima facie burden, is required to meet its burden of demonstrating a
legitimate, nondiscriminatory reason for her termination via evidence of Plaintiff’s alleged
poor job performance, and documentation of this defense was disclosed in discovery.18
The Court did, however, rule that Defendant may not introduce evidence of comparative
teacher performances.19
Further, the Court notes that Plaintiff identified the following alleged disabilities
and/or illnesses in her Amended Complaint: rhinitis, asthma, psoriasis, bronchospasm,
dermatitis, migraine headaches, and debilitating allergies.20

However, in Plaintiff’s

Memorandum in Support of Plaintiff’s Motion for Partial Summary Judgment, she
identifies the following additional maladies by which she purportedly claims disabled
status under the ADA: “hormonal imbalance, uterine fibroid tumors, adrenal fatigue, leaky
gut syndrome, and genetic mutations that ‘decrease her body’s ability to process toxins
and harmful chemicals.’”21 As these conditions were not identified in Plaintiff’s Amended

16

Rec. Doc. No. 117 at 2.
Id.
18
Rec. Doc. No. 118.
19
Id. at 3.
20
Rec. Doc. No. 32, ¶ 8.
21
Rec. Doc. No. 72-1 at 2 (citations omitted).
17

Document Number: 52739 
Page 5 of 37 

Complaint, they are not properly before the Court on summary judgment and will not be
considered for purposes of determining if Plaintiff has established that she is “disabled”
for purposes of the ADA.
III.

LAW & ANALYSIS
A. Summary Judgment Standard
“The court shall grant summary judgment 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.”22 “When assessing whether a dispute to any material fact exists, we consider all
of the evidence in the record but refrain from making credibility determinations or weighing
the evidence.”23 A party moving for summary judgment “must ‘demonstrate the absence
of a genuine issue of material fact,’ but need not negate the elements of the nonmovant’s
case.”24 If the moving party satisfies its burden, “the non-moving party must show that
summary judgment is inappropriate by setting ‘forth specific facts showing the existence
of a genuine issue concerning every essential component of its case.’”25 However, the
non-moving party’s burden “is not satisfied with some metaphysical doubt as to the
material facts, by conclusory allegations, by unsubstantiated assertions, or by only a
scintilla of evidence.”26
Notably, “[a] genuine issue of material fact exists, ‘if the evidence is such that a

22

Fed. R. Civ. P. 56(a).
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008).
24
Guerin v. Pointe Coupee Parish Nursing Home, 246 F.Supp.2d 488, 494 (M.D. La. 2003)(quoting Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)(en banc)(quoting Celotex Corp. v. Catrett, 477 U.S.
317, 323-25, 106 S.Ct. at 2552)).
25
Rivera v. Houston Independent School Dist., 349 F.3d 244, 247 (5th Cir. 2003)(quoting Morris v. Covan
World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998)).
26
Willis v. Roche Biomedical Laboratories, Inc., 61 F.3d 313, 315 (5th Cir. 1995)(quoting Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
23

Document Number: 52739 
Page 6 of 37 

reasonable jury could return a verdict for the nonmoving party.’”27 All reasonable factual
inferences are drawn in favor of the nonmoving party.28 However, “[t]he Court has no
duty to search the record for material fact issues. Rather, the party opposing the summary
judgment is required to identify specific evidence in the record and to articulate precisely
how this evidence supports his claim.”29 “Conclusory allegations unsupported by specific
facts … will not prevent the award of summary judgment; ‘the plaintiff [can]not rest on his
allegations … to get to a jury without any “significant probative evidence tending to
support the complaint.”’”30
B. Discrimination under the ADA
In a discriminatory-termination action under the ADA, the employee may either
present direct evidence that she was discriminated against because of her disability or
alternatively proceed under the burden-shifting analysis first articulated in McDonnell
Douglas Corp. v. Green, a Title VII case.”31

The analysis first requires the plaintiff to

establish a prima facie case of discrimination.32 To prove a prima facie case for a violation
of the ADA, a plaintiff must show that (1) she is disabled or regarded as disabled within
the meaning of the ADA, (2) she is qualified for the job position, and (3) she was subjected
to an adverse employment action on account of her disability or perceived disability.33
Accordingly, a “defendant may satisfy its burden on summary judgment by showing that

27

Pylant v. Hartford Life and Accident Insurance Company, 497 F.3d 536, 538 (5th Cir. 2007)(quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
28
Galindo v. Precision American Corp., 754 F.2d 1212, 1216 (5th Cir. 1985).
29
RSR Corp. v. Int’l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010).
30
Nat’l Ass’n of Gov’t Employees v. City Pub. Serv. Bd. of San Antonio, Tex., 40 F.3d 698, 713 (5th Cir.
1994)(quoting Anderson, 477 U.S. at 249).
31
E.E.O.C. v. LHC Group, Inc., 773 F.3d 688, 694 (5th Cir. 2014) (internal citation omitted).
32
Id.
33
Id. at 697. See also, Suggs v. Central Oil of Baton Rouge, LLC, 2014 WL 3037213, at *5 (M.D.La. July
3, 2014).

Document Number: 52739 
Page 7 of 37 

plaintiff has failed to establish a prima facie case of discrimination.”34

However, if the

plaintiff is able to make a prima facie showing, then the burden shifts to the defendantemployer to articulate and support with record evidence, a legitimate, non-discriminatory
reason for the adverse employment action.35

If the employer comes forward with

evidence of a non-discriminatory reason for the employment action, then the burden shifts
to the plaintiff to produce record evidence from which a reasonable jury could find that the
articulated reason was merely pretext for the unlawful discrimination.36
1.

Disabled

The Parties dispute whether Plaintiff was disabled under the ADA. The ADA
defines “disability” as “a physical or mental impairment that substantially limits one or
more major life activities of such individual.”37 In addition, there must be “a record of such
an impairment,” or the individual must be “regarded as having such an impairment.”38
The determination of disability is a three-part test: (1) impairment, (2) major life activity,
and (3) whether the impairment substantially limits at least one major life activity.39 “An
impairment is a disability within the meaning of this section if it substantially limits the
ability of an individual to perform a major life activity as compared to most people in the
general population. An impairment need not prevent, or significantly or severely restrict,
the individual from performing a major life activity in order to be considered substantially

34

Butler v. State, Louisiana Dept. of Public Safety and Corrections, 2014 WL 6959940, at *8 (M.D.La. Dec.
4, 2014).
35
Bell v. Lane, 2014 WL 4925682, at *6 (M.D.La. Sept. 30, 2014)(citing McInnis v. Alamo Community
College Dist., 207 F.3d 276, 279-80 (5th Cir. 2000)(citing Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 396
(5th Cir. 1995)(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).
36
Id.
37
42 U.S.C. § 12102(1).
38
Id.
39
Waldrip v. Gen. Elec. Co., 325 F.3d 652, 654 (5th Cir. 2003).

Document Number: 52739 
Page 8 of 37 

limiting.”40 “Major life activities include ‘caring for oneself, performing manual tasks,
seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing,
learning, reading, concentrating, thinking, communicating, and working.’”41
In 2008, Congress passed the ADA Amendments Act (“ADAAA”) to “make it easier
for people with disabilities to obtain protection under the ADA.”42 “A principal way in which
Congress accomplished that goal was to broaden the definition of disability.”43
Specifically, Congress noted that “the Supreme Court and EEOC had interpreted the
‘substantially limits’ standard to be a more demanding one than Congress had
intended.”44
Defendant routinely relies on pre-amendment law in support of its motion,
particularly referencing Sutton v. United Air Lines, Inc.45 and Toyota Motor Manufacturing,
Kentucky, Inc. v. Williams.46 However, as the district court for the Western District of
Louisiana explained in Johnson v. JPMorgan Chase & Co.:47
The stated purposes behind the ADAAA included, inter alia,
(4) to reject the standards enunciated by the Supreme Court in
Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S.
184 (2002), that the terms “substantially” and “major” in the definition
of disability under the ADA “need to be interpreted strictly to create a
demanding standard for qualifying as disabled and that to be
substantially limited in performing a major life activity under the ADA
40

Willis v. Noble Environmental Power LLC., 143 F.Supp.3d 475, 481 (N.D. Tex. 2015)(quoting 29 C.F.R.
§ 1630.2(j)(1)(ii)).
41
Kemp v. Holder, 610 F.3d 231, 235 (5th Cir. 2010) (quoting 42 U.S.C. § 12102(2)(A)).
42
29 C.F.R. § 1630.1(c)(4).
43
Cannon v. Jacobs Field Services North America, Inc., 813 F.3d 586, 590 (5th Cir. 2016).
44
Id.; 42 U.S.C. § 12101 note (ADA Amendments Act of 2008) (expressly disapproving of prior Supreme
Court decisions and EEOC interpretations of the “substantially limits” standard); Neely v. PSEG Tex., Ltd.
P'ship, 735 F.3d 242, 245 (5th Cir. 2013) (stating that the ADAAA was passed to correct the perceived
misconception that the “substantially limits” standard is a demanding inquiry).
45
527 U.S. 471 (1999).
46
534 U.S. 184 (2002).
47
No. 16-1632, 2017 WL 1237979 at *4-5 (W.D. La. Feb. 16, 2017).

Document Number: 52739 
Page 9 of 37 

“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;”
(5) to convey congressional intent that the standard created by the
Supreme Court in the case of Toyota Motor Manufacturing,
Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) for “substantially
limits”, and applied by lower courts in numerous decisions, has
created an inappropriately high level of limitation necessary to obtain
coverage under the ADA, to convey that it is the intent of Congress
that the primary object of attention in cases brought under the ADA
should be whether entities covered under the ADA have complied
with their obligations, and to convey that the question of whether an
individual's impairment is a disability under the ADA should not
demand extensive analysis; and
(6) to express Congress' expectation that the Equal Employment
Opportunity Commission will revise that portion of its current
regulations that defines the term “substantially limits” as “significantly
restricted” to be consistent with this Act, including the amendments
made by this Act.48
Thus, in accordance with Congressional instructions, the EEOC regulations were
amended in April 2012 to provide, in pertinent part, as follows:
(j) Substantially limits—
(1) Rules of construction. The following rules of construction apply when
determining whether an impairment substantially limits an individual in
a major life activity:
(i)

(ii)

48

The term “substantially limits” shall be construed broadly in favor of
expansive coverage, to the maximum extent permitted by the terms
of the ADA. “Substantially limits” is not meant to be a demanding
standard.
An impairment is a disability within the meaning of this section if it
substantially limits the ability of an individual to perform a major life
activity as compared to most people in the general population. An
impairment need not prevent, or significantly or severely restrict, the
individual from performing a major life activity in order to be
considered substantially limiting. Nonetheless, not every impairment

Id. (quoting ADAAA, PL 110-325 (emphasis in original)).

Document Number: 52739 
Page 10 of 37 

will constitute a disability within the meaning of this section.

(iii)

The primary object of attention in cases brought under the ADA
should be whether covered entities have complied with their
obligations and whether discrimination has occurred, not whether an
individual's impairment substantially limits a major life activity.
Accordingly, the threshold issue of whether an impairment
“substantially limits” a major life activity should not demand
extensive analysis.

(iv)

The determination of whether an impairment substantially limits a
major life activity requires an individualized assessment.
However, in making this assessment, the term “substantially limits”
shall be interpreted and applied to require a degree of functional
limitation that is lower than the standard for “substantially limits”
applied prior to the ADAAA.

(v)

The comparison of an individual's performance of a major life activity
to the performance of the same major life activity by most people in
the general population usually will not require scientific, medical, or
statistical analysis. Nothing in this paragraph is intended, however,
to prohibit the presentation of scientific, medical, or statistical
evidence to make such a comparison where appropriate.

(vi)

The determination of whether an impairment substantially limits a
major life activity shall be made without regard to the ameliorative
effects of mitigating measures. However, the ameliorative effects of
ordinary eyeglasses or contact lenses shall be considered in
determining whether an impairment substantially limits a major life
activity.

(vii)

An impairment that is episodic or in remission is a disability if it would
substantially limit a major life activity when active.

(viii)

An impairment that substantially limits one major life activity need not
substantially limit other major life activities in order to be considered
a substantially limiting impairment.

***
(4) Condition, manner, or duration—
(i)

At all times taking into account the principles in paragraphs (j)(1)(i)
through (ix) of this section, in determining whether an individual is

Document Number: 52739 
Page 11 of 37 

substantially limited in a major life activity, it may be useful in
appropriate cases to consider, as compared to most people in the
general population, the condition under which the individual performs
the major life activity; the manner in which the individual performs the
major life activity; and/or the duration of time it takes the individual to
perform the major life activity, or for which the individual can perform
the major life activity.
(ii)

(iii)

In determining whether an individual has a disability under the “actual
disability” or “record of” prongs of the definition of disability, the focus
is on how a major life activity is substantially limited, and not on what
outcomes an individual can achieve. For example, someone with a
learning disability may achieve a high level of academic success, but
may nevertheless be substantially limited in the major life activity of
learning because of the additional time or effort he or she must spend
to read, write, or learn compared to most people in the general
population.

(iv)

49

Consideration of facts such as condition, manner, or duration may
include, among other things, consideration of the difficulty, effort, or
time required to perform a major life activity; pain experienced when
performing a major life activity; the length of time a major life activity
can be performed; and/or the way an impairment affects the
operation of a major bodily function. In addition, the non-ameliorative
effects of mitigating measures, such as negative side effects of
medication or burdens associated with following a particular
treatment regimen, may be considered when determining whether
an individual's impairment substantially limits a major life activity.

Given the rules of construction set forth in paragraphs (j)(1)(i)
through (ix) of this section, it may often be unnecessary to conduct
an analysis involving most or all of these types of facts. This is
particularly true with respect to impairments such as those described
in paragraph (j)(3)(iii) of this section, which by their inherent nature
should be easily found to impose a substantial limitation on a major
life activity, and for which the individualized assessment should be
particularly simple and straightforward.49

29 C.F.R. § 1630.2(j)(1), (2), & (4) (emphasis added).

Document Number: 52739 
Page 12 of 37 

The most recent Fifth Circuit decision interpreting “substantially limits” is in
Williams v. Tarrant County College District.50 In Williams, the plaintiff claimed to suffer
from depression, PTSD, ADHD, and other conditions which were accompanied by
symptoms including “debilitating migraine headaches” which she claimed, when
unmanaged, “made it difficult for her ‘to think well, concentrate, take care of [her]self,
[and] sleep normally.’”51 The plaintiff’s employer moved for summary judgment on her
ADA claim, and the district court granted summary judgment in favor of the employer,
finding that the plaintiff’s “self-serving declaration, without medical documentation or
support, [was] not sufficient” to overcome the employer’s motion.52 The district court had
“disregarded [plaintiff’s] declaration as conclusory, and second, ruled her ‘declaration …
even if accepted in whole … [to be] insufficient summary judgment evidence to raise a
material fact issue as to a substantial limitation’ without corroborating medical
evidence.”53
In reviewing the district court’s decision, the Fifth Circuit noted that,
“Congress amended the ADA in 2008 to clarify its scope and remedy some
unintended judicial interpretations. In Congress’ view, the Supreme Court,
in cases like Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S.Ct. 2139,
144 L.Ed.2d 450 (1999), and Toyota Motor Manufacturing, Kentucky, Inc.
v. Williams, 534 U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002),
‘narrowed the broad scope of protection intended to be afforded by the ADA,
thus eliminating protection for many individuals whom Congress intended
to protect.’”54
Applying these broader definitions, the Fifth Circuit noted the plaintiff’s burden of

50

717 Fed. Appx. 440 (5th Cir. 2018).
Id. at 447.
52
Id. at 448.
53
Id. at 447.
54
Id. at 446 (quoting ADA Amendments Act of 2008, Pub. L. No. 110-325, § 2(a)(4)–(5) (2008) (Findings
and Purposes) (codified in scattered sections of 42 U.S.C.)).
51

Document Number: 52739 
Page 13 of 37 

demonstrating that she suffers from a disability under the ADA and explained that she
satisfies this burden as follows:
A plaintiff satisfies the actual standard by showing she has “a physical or
mental impairment that substantially limits one or more major life activities”.
Id. § 12102(1)(A). “[M]ajor life activities include, but are not limited to, caring
for oneself, performing manual tasks, seeing, hearing, eating, sleeping,
[and] walking”. Id. § 12102(2)(A). The EEOC has cautioned: “‘Substantially
limits’ is not meant to be a demanding standard”. 29 C.F.R. § 1630.2(j)(1)(i).
“An impairment need not prevent, or significantly or severely restrict”
performance of major life activities, but rather, the standard is whether it
“substantially limits the ability of an individual to perform a major life activity
as compared to most people in the general population”. Id. § 1630.2(j)(1)(ii).
This comparison “usually will not require scientific, medical, or
statistical analysis”. Id. § 1630.2(j)(1)(v).55
In reversing the district court, the Fifth Circuit first noted its disagreement with the
district court’s finding that the plaintiff’s declaration was conclusory:
As an initial matter, Williams’ declaration is not conclusory: it details her
diagnoses, treatments, and symptoms since childhood, and elaborates on
some of the recent effects of her ailments. For example, she explained that,
after the 2012 assault, “the symptoms of [her] depression, PTSD Complex,
ADHD, and other conditions were constantly with [her]”, and she “had
trouble forming thoughts and communicating”. And, when unmanaged, her
various conditions gave her “debilitating migraine headaches” and made it
difficult for her “to think well, concentrate, take care of [her]self, [and] sleep
normally”. The substantial limitation of exactly these types of activities
constitutes a disability under the ADA. Id. § 12102(2)(A) (caring for oneself,
sleeping, concentrating, thinking, and communicating enumerated major life
activities). Additionally, two of the conditions Williams chronicles in her
declaration—major depressive disorder and PTSD—are included in the
implementing regulations’ list of impairments that should “easily be
concluded” to substantially limit brain function. 29 C.F.R. § 1630.2(j)(3)(iii).
The court, therefore, should have considered Williams’ declaration as
relevant summary-judgment evidence of substantial limitation.
Not only is it relevant, it is sufficient to create the requisite genuine
dispute of material fact. The court’s conclusion that Williams’ “self-serving
declaration, without medical documentation or support, is not sufficient” is
incorrect. The 2008 amendments and their implementing regulations
55

Id. at 446-47 (emphasis added).

Document Number: 52739 
Page 14 of 37 

broaden protection for the disabled, in part by clarifying, as noted supra,
that showing substantial limitation “usually will not require scientific,
medical, or statistical analysis”. Id. § 1630.2(j)(1)(v). The court’s requiring
medical corroboration at the summary-judgment stage was, therefore,
erroneous.56
The court also disagreed with the lower court’s finding that the plaintiff’s ability to perform
her job duties despite her medical conditions undermined her claim:
The court also erred in suggesting Williams’ being certified to “work a full,
regularly scheduled day with no restrictions” undercut her disability claim.
An individual’s ability to perform her job does not prevent a finding of
disability; her disability may be unrelated to the performance of her job, or
perhaps, with reasonable accommodations, she is capable of fulfilling her
duties. The court’s statement was therefore contrary to both law and
experience. E.g., Cannon, 813 F.3d at 591 n.3 (plaintiff’s statements that
he needed no accommodation at work do not undermine evidence of actual
disability). Similarly, the implication Williams could not show disability
without showing she is “a person who has difficulty leading a normal life”
finds no support in the ADA, its implementing regulations, or our caselaw.57
The Williams court continued by noting that “district courts within this circuit routinely
consider a plaintiff’s testimony, without more, sufficient to create a genuine dispute of
material fact regarding substantial limitation.”58 Thus, the court found that:
Williams’ detailing in her declaration her trouble sleeping, thinking, focusing,
communicating, and caring for herself is no different. In the light of the
relatively low bar created by the substantially-limits and summary-judgment

56

Id. at 447-48 (emphasis added).
Id. at 448.
58
Id. (citing e.g., Kennedy v. Parkview Baptist Sch., Inc., 2014 WL 7366256, at *14 (M.D. La. Dec. 24,
2014) (“viewed in the light most favorable to plaintiff, [her testimony and statements about her asthma]
would be sufficient for a reasonable trier of fact to find” substantial limitation); Mercer v. Arbor E & T, LLC,
2013 WL 164107, at *13 (S.D. Tex. Jan. 15, 2013) (“even if the Court confined it’s [sic] analysis to [plaintiff’s]
deposition testimony alone, she ... demonstrate[d] a genuine [dispute] of material fact regarding whether
[she] is disabled”); Sechler v. Modular Space Corp., 2012 WL 1355586, at *11 (S.D. Tex. Apr. 18, 2012)
(“In light of the ‘substantially limits’ standard created by the [ADA Amendments Act of 2008], the Court
thinks it appropriate to read [plaintiff’s] testimony as giving rise to a genuine [dispute] of material fact”)).
57

Document Number: 52739 
Page 15 of 37 

standards, Williams’ declaration creates a genuine dispute of material fact
for whether her impairments are substantially limiting.59
Considering the post-amendment regulations and definitions applicable in this
case, and applying the reasoning and analysis set forth by the Fifth Circuit above in
Williams, the Court finds that whether Plaintiff herein is disabled for purposes of the ADA
is a genuinely disputed material fact. Although the Court did exclude the testimony and
reports of Dr. Warshowsky, Plaintiff attested in her declaration that her “symptoms include
severe, painful rashes that make it difficult to work and to move around freely.”60 Plaintiff
further declared that her “symptoms include fatigue, difficulty concentrating, difficulty
sleeping, difficulty breathing, upset stomach, lack of focus, and irritability, all of which
interfere with my ability to perform my job duties as a teacher.”61 Plaintiff has also
submitted numerous medical records detailing her treatment for several of these claimed
illnesses/conditions during the relevant time period.62
Accordingly, the Court finds that whether Plaintiff is disabled, particularly whether
any claimed impairments substantially limited a major life activity, under the ADA is a
disputed issue of fact best left for the trier of fact to determine. Both Parties’ motions are
denied on this issue.
2. Qualified for the Position
“The ADA protects qualified individuals with disabilities from discrimination.”63 The
Act defines a “Qualified Individual” as:
an individual who, with or without reasonable accommodation, can perform
59

Id.
Rec. Doc. No. 108-2, ¶ 6.
61
Id. at ¶ 7.
62
Rec. Doc. No. 23-4; Rec. Doc. No. 54-2; Rec. Doc. No. 54-6.
63
Picard v. St Tammany Parish Hospital, 423 Fed. Appx. 467, 469 (5th Cir. 2011).
60

Document Number: 52739 
Page 16 of 37 

the essential functions of the employment position that such individual holds
or desires. For the purposes of this subchapter, consideration shall be given
to the employer's judgment as to what functions of a job are essential, and
if an employer has prepared a written description before advertising or
interviewing applicants for the job, this description shall be considered
evidence of the essential functions of the job.64
“The term ‘qualified,’ with respect to an individual with a disability, means that the
individual satisfies the requisite skill, experience, education and other job-related
requirements of the employment position the individual holds or desires and, with or
without reasonable accommodation, can perform the essential functions of the position.”65
Defendant maintains that Plaintiff cannot demonstrate an issue of fact as to
whether she was “qualified” because, pursuant to Louisiana state law, the Plaintiff was
determined to be an ineffective teacher based on poor teaching skills such that she was
subject to termination for incompetence under La. R.S. 17:442(C)(1).66

Further,

Defendant maintains that La. R.S. 17:3902(C)(2)(b)(v) provided that, based on this finding
of ineffectiveness, the local board was permitted to “timely initiate termination
proceedings.”67
Defendant states that it had both written job criteria and state-mandated
performance criteria for Plaintiff’s teaching position.

Defendant acknowledged that

Plaintiff testified in her deposition that she was able to perform all of the enumerated
duties of her teaching job, which included: providing daily lesson plans; providing and
recording student progress; grading tests; grading assignments; checking daily

64

42 U.S.C. § 12111(8).
42 U.S.C. § 12111(8); 29 C.F.R. § 1630.2(m); Shirley v. Precision Castparts Corp., 726 F.3d 675, 678
(5th Cir.2013); Kennedy v. Parkview Baptist School Inc., 2014 WL 7366256 at *6 (M.D. La. Dec. 24, 2014).
66
“[A] final performance evaluation program as provided in R.S. 17:3881 through 3905 … shall constitute
sufficient grounds for disciplinary action …”
67
Rec. Doc. No. 76-2 at 9.
65

Document Number: 52739 
Page 17 of 37 

attendance; providing progress reports to parents; assigning classroom and homework;
checking student folders; escorting students to and from the cafeteria and other activities;
meeting with administration, colleagues, students, and parents; using both audio and
visual materials to teach class; attending faculty meetings; and participating in parishwide in-service days.68

Defendant did not present summary judgment evidence to

contradict Plaintiff’s testimony that she was capable of performing these functions of her
job, nor did it argue that she failed to perform these functions. Defendant singularly relies
on the Plaintiff’s “ineffective” rating to argue that she was not qualified for her job because
state law mandates that teachers maintain an effective performance rating relative to
student progress using the established protocols.
Plaintiff counters that her “ineffective” rating is irrelevant to whether she was
“qualified” for her job within the meaning of the ADA, arguing that “state law does not
determine whether an individual is ‘qualified’ within the meaning of the ADA, a federal
statute,” and applicable regulations provide that “essential functions are determined by
considering job descriptions, not by reference to ‘state law.’”69 Plaintiff maintains there is
no evidence to support Defendant’s assertion that achieving an “effective” rating was an
essential function of her job. Nevertheless, should the Court find that an effective rating
was an essential job function, Plaintiff contends she has presented sufficient evidence to
demonstrate that there is an issue of fact whether reasonable accommodations could
have allowed Plaintiff to achieve this function.
The Court disagrees with Plaintiff’s assertion that state mandated performance

68
69

Rec. Doc. No. 77-8, Deposition of Katina Hebert, pp. 166-168.
Rec. Doc. No. 108 at 11.

Document Number: 52739 
Page 18 of 37 

standards for teachers are irrelevant when considering the essential functions of her job
as a school teacher. Indeed, Plaintiff does not offer any evidence or law suggesting that
Defendant is not bound to apply these performance standards to its teachers, and,
contrary to Plaintiff’s argument, Defendant did cite the law implementing these
standards.70 However, there is an issue of fact regarding Defendant’s efforts to provide
reasonable accommodations to Plaintiff, as will be detailed below, particularly in light of
Defendant’s acknowledgment that, at no time, did Plaintiff’s principal or direct supervisors
believe that she was disabled under the ADA.71 Thus, although the Court finds that being
deemed “effective” under state mandated performance standards is an essential function
of the job of a school teacher in Louisiana, as set forth by Louisiana law, Plaintiff has
demonstrated a question of fact as to whether there were any reasonable
accommodations that could have allowed her to perform the essential functions of her
job, i.e., in this instance, improved her performance rating.
Plaintiff states in her sworn Declaration that she was never deemed ineffective
when she was teaching in schools located further away from chemical plants.72 Plaintiff
has also submitted evidence demonstrating that she has received positive performance
evaluations while she has been employed by the East Baton Rouge Parish School
System, where she has been employed since her termination by Defendant.73 Indeed,
Plaintiff’s Evaluation Report, dated May 24, 2017, following the 2016-2017 session as a

70

(Emphasis added). The Court acknowledges Plaintiff’s argument that these performance standards have
not been applied equally to Defendant’s teachers.
71
See Rec. Doc. No. 77-2, Affidavit of Robin Anderson (Principal of Sorrento Primary School during the
dates in question), ¶ 2.
72
Rec. Doc. No. 108-2, ¶ 44.
73
Id., ¶ 45; Rec. Doc. No. 108-3.

Document Number: 52739 
Page 19 of 37 

teacher at LaBelle Aire Elementary School in East Baton Rouge Parish, shows that
Plaintiff’s overall rating was “Highly Effective,” and Plaintiff received accolades from her
evaluator.74 Further, Plaintiff’s Declaration contains the allegations that Defendant failed
to follow its own policies in evaluating, counseling, and attempting to correct her alleged
deficiencies, and Defendant treated Plaintiff differently than other similarly situated
teachers.75 Accordingly, whether Plaintiff could perform the essential functions of her job,
with or without reasonable accommodations, is a question of fact for which there exists
conflicting evidence that the Court cannot determine on summary judgment.
3.

Reasonable Accommodation

Discrimination under the ADA includes “not making reasonable accommodations
to the known physical or mental limitations of an otherwise qualified individual with a
disability [...] unless [the employer] can demonstrate that the accommodation would
impose an undue hardship on the operation of the business of [the employer].”76 To
sustain a failure to accommodate claim, a plaintiff must show that: “(1) the plaintiff is a
qualified individual with a disability; (2) the disability and its consequential limitations were
known by the covered employer; and (3) the employer failed to make reasonable
accommodations for such known limitations.”77
An employee in need of an accommodation has the responsibility of informing her
employer of this need. Further, where the disability, resulting limitations, and necessary
reasonable accommodations are not open, obvious, and apparent to the employer, the

74

Rec. Doc. No. 108-3 at 1.
Rec. Doc. No. 108-2, ¶¶ 38-43.
76
42 U.S.C. § 12112(b)(5)(A).
77
Feist v. Louisiana Dept. of Justice, Office of the Atty. Gen., 730 F.3d 450, 452 (5th Cir. 2013)(internal
quotation marks omitted).
75

Document Number: 52739 
Page 20 of 37 

initial burden rests “primarily upon the employee [...] to specifically identify the disability
and resulting limitations, and to suggest the reasonable accommodations.”78 The
employee's request for accommodations “must explain that the adjustment in working
conditions or duties she is seeking is for a medical condition-related reason, but the
employee need not mention the ADA or use the phrase ‘reasonable
accommodation.’”79
When a qualified individual with a disability requests a reasonable accommodation,
the employer and employee should engage in “flexible, interactive discussions to
determine the appropriate accommodation.”80

EEOC regulations provide that an

employer should initiate the interactive process, but the interactive process requires the
input of the employee as well as the employer.81
Defendant moves for summary judgment on this claim, arguing that it “was never
informed by [Plaintiff] that she had a disability defined by the ADA, i.e. an ‘impairment’
that significantly restricted the performance of a major life activity as compared to the
average person.”82 Defendant also maintains that it never considered Plaintiff disabled
in any sense as no disability or impairment was obvious or apparent,83 she never missed
a day of work or left early due to any medical condition or impairment during the year of
her termination (2014-2015);84 she never experienced any health-related attacks or

78

Griffin v. United Parcel Service, Inc., 661 F.3d 216, 224 (5th Cir. 2011) (citing E.E.O.C. v. Chevron Phillips
Chem. Co., 570 F.3d 606, 621 (5th Cir. 2009)).
79
Chevron Phillips, 570 F.3d at 621 (emphasis added).
80
Griffin, 661 F.3d at 224.
81
Loulsgeld v. Akzo Nobel Inc., 178 F.3d 731, 735 (5th Cir. 1999) (citing 29 C.F.R. § 1630.2(o)(3)).
82
Rec. Doc. No. 76-2 at 12.
83
Rec. Doc. No. 77-2 (Affidavit of Robin Anderson); Rec. Doc. No. 76-4 (Excerpt from Deposition of HR
Director Randy Watts).
84
Rec. Doc. No. 78-1.

Document Number: 52739 
Page 21 of 37 

emergencies requiring immediate attention; and she never provided any medical records
to Defendant prior to the initiation of her termination.85 Defendant acknowledges that
Plaintiff submitted letters from health care providers in 2011 and 2012 regarding Plaintiff’s
symptoms related to allergies, skin conditions, and headaches, which Defendant states
“are conditions not uncommon among teachers, staff, and students in a primary school.”86
Defendant also argues that “[i]t is important to note that Hebert has not disclosed a single
document or witness that deemed her to be ‘disabled’ and/or having an ‘impairment’
within the meaning of the ADA prior to or at the time of her termination.”87
Defendant acknowledges medically-related requests Plaintiff submitted to her
superiors prior to her termination but refers to these as “requests for special treatment”
related to her allergy, headache, and/or asthma symptoms.88 Defendant argues these
were “primarily submitted by way of generic ‘to whom it may concern’ letter[s] solicited
from a health care provider and based upon plaintiff’s subjective complaints.”89
Defendant cites to four such letters, dated 9/21/11, 10/6/11, 9/18/13, and 11/25/13, as
identified in Plaintiff’s original Complaint.90
Notwithstanding its claims that it was never advised of any disability/impairment,
nor did it consider Plaintiff disabled or impaired under the ADA, Defendant contends it
worked “back and forth” with Plaintiff to accommodate all reasonable requests.91
Defendant cites the deposition testimony of Ascension Parish School System Human

85

Rec. Doc. No. 77-8 (Deposition of Katina Hebert, pp. 148-150).
Rec. Doc. No. 76-2 at 12.
87
Id. (emphasis omitted).
88
Id. at 14.
89
Id.
90
Rec. Doc. No. 1, ¶11.
91
Rec. Doc. No. 76-2 at 14 (quoting Rec. Doc. No. 76-4, Deposition of Randy Watts, p. 19, line 15).
86

Document Number: 52739 
Page 22 of 37 

Resources Director Randy Watts (“Watts”), wherein Watts testified that Plaintiff had made
requests for accommodations on different occasions, and he acknowledged that,
although he did not recall ever meeting with Plaintiff to discuss potential accommodations,
he “went back and forth” with her via email communications discussing potential
accommodation options.92

Further, Defendant contends it did, in fact, provide Plaintiff

with reasonable accommodations when it could do so, noting that Fifth Circuit
jurisprudence provides that an employee has a right to a reasonable accommodation, but
not the employee’s “preferred accommodation.”93 Sorrento Primary School principal
Robin Anderson (“Anderson”) attested as follows in response to accommodation requests
made by Plaintiff:94

Watts confirmed that certain accommodations were made related to Plaintiff’s complaints
but also confirmed that Plaintiff’s requests to be transferred to other schools were
denied.95

In any event, Defendant maintains that the summary judgment evidence

demonstrates that it engaged in the interactive process with Plaintiff and attempted to

92

Id. at 19-20.
Rec. Doc. No. 76-2 at 16 (citing Hedrick v. Western Reserve Care System, 355 F.3d 444, 457 (6th
Cir.2004); 29 C.F.R. pt. 1630, App., § 1630.9; see also, E.E.O.C. v. Agro Distribution LLC, 555 F.3d 462
(5th Cir. 2009)).
94
Rec. Doc. No. 77-2 (Affidavit of Robin Anderson, ¶ 5).
95
Rec. Doc. No. 76-4 (Deposition of Randy Watts, pp. 20-25).
93

Document Number: 52739 
Page 23 of 37 

accommodate all reasonable requests in relation to the medical conditions of which she
complained; thus, it is entitled to summary judgment on her failure to accommodate claim.
Plaintiff

contends

that

Defendant

agreed

to

provide

“certain

limited

accommodations, all of which were either ineffective or not actually provided.”96 Plaintiff
cites her sworn Declaration wherein she declared that, although she was advised “that
APSB would not buff or wax the floors during my work hours[,] APSB continued to buff
and wax the floors during work hours on a regular basis.”97 Plaintiff also declared that,
“[a]lthough APSB ostensibly prohibited the spraying of chemicals in certain areas of the
school to prevent me from being exposed to such chemicals, these rules were never
enforced, and APSB frequently sprayed such chemicals in these areas.”98

Plaintiff

declared that her request that the school write a letter to parents asking that they not
permit students to wear perfumes/colognes to school was denied at Sorrento although it
had been granted when she was teaching at St. Amant.99 Additionally, Plaintiff declared
that, when she complained that certain accommodations were ineffective in ameliorating
her symptoms, she was “ridiculed.”100 Plaintiff claims she sought a meeting with Watts to
discuss her requests, but he never responded or agreed to meet with Plaintiff.101
Plaintiff maintains that Anderson “demonstrated considerable animosity” towards
Plaintiff when she discussed her conditions, requests for accommodations, and requests
to transfer, and Anderson allegedly frequently screamed at Plaintiff where other

96

Rec. Doc. No. 108 at 3.
Rec. Doc. No. 108-2, ¶ 16.
98
Id. at ¶ 17.
99
Id. at ¶ 18.
100
Id. at ¶ 21.
101
Id. at ¶ 22.
97

Document Number: 52739 
Page 24 of 37 

employees could hear and often remarked that she didn’t believe that Plaintiff’s allergies
were “that bad.”102 Plaintiff claims she first advised Anderson of her conditions at Sorrento
Primary on March 11, 2011.103 On September 21, 2011, Plaintiff’s treating physician, Dr.
Vimla Menon (“Dr. Menon”), sent a letter to Human Resources recommending Plaintiff be
transferred back to St. Amant as an accommodation for her rhinitis, asthma, and related
symptoms, based on the conclusion that Plaintiff’s symptoms were less severe when she
had previously been employed at St. Amant.104 Plaintiff received a denial of this request
from Watts dated September 27, 2011, wherein Watts stated Plaintiff would provide the
alternative accommodation of not cleaning her classroom until after hours, but the letter
did not provide a reason for the transfer denial or explain how a transfer was unavailable
or would cause an undue burden to Defendant.105
Plaintiff contends that, shortly after this request and denial, on October 2, 2011,
she emailed Anderson to advise of her worsening symptoms due to the use of classroom
cleaning products. Plaintiff contends that she was informed “shortly thereafter” that she
would be subjected to a “surprise in-class observation” that same day. While Plaintiff
acknowledged Defendant’s right to conduct unannounced observations, Plaintiff
maintains teachers were normally given advance notice of such observations, and further,
that these observations did not usually include the presence of a school board member.106
Plaintiff claims that she formally requested transfers from Sorrento on several
occasions, to no avail: Plaintiff requested another transfer by letter citing “personal and

102

Rec. Doc. No. 108 at 3 (citing Rec. Doc. No. 108-2, ¶ 36).
Rec. Doc. No. 108-2, ¶ 13.
104
Id. at ¶ 14.
105
Id. at ¶ 15.
106
Id. at ¶ 37.
103

Document Number: 52739 
Page 25 of 37 

medical reasons” on April 12, 2012;107 on April 30, 2013, she again requested a transfer
citing “personal medical and environmental concerns;108 on September 18, 2013, Dr.
Menon wrote a letter on Plaintiff’s behalf, which she submitted to Defendant,
recommending “the avoidance of fumes, irritants, odors, chemicals, pollutants and
cigarette smoke”;109 on November 25, 2013, Dr. Charles Eberly wrote a letter regarding
the increase in Plaintiff’s migraine headaches and symptoms of asthma and dermatitis
and requested “[p]lease take this into considering when chosing [sic] her work location”;110
on April 24, 2014, Plaintiff against formally requested a transfer citing “personal, medical
and environmental concerns”;111 on July 14, 2014, Dr. Alan Dattner wrote a letter
recommending Plaintiff be transferred to a school further away from chemical plants,
citing her “rash and multiple environmental sensitivities,” and noting that Plaintiff’s
symptoms had worsened based on her proximity to chemical plants;112 Plaintiff again
formally requested a transfer on April 29, 2015 citing “personal, medical and
environmental concerns”;113 on June 1, 2015, Dr. Karen Miller wrote a letter requesting
Plaintiff be transferred to another school to accommodate her “inflammatory conditions
that worsen when exposed to chemical emissions from chemical plants, manufacturing
and industrial facilities”;114 on July 22, 2015, Dr. Menon, Dr. Warshowsky, and Dr. Jeffery
Frederic all wrote letters on Plaintiff’s behalf describing her symptoms and diagnoses in

107

Id. at ¶ 23.
Id. at ¶ 24 (quoting Rec. Doc. No. 73-3 at 2).
109
Id. at ¶ 25 (quoting Rec. Doc. No. 23-4).
110
Id. at ¶ 26 (quoting Rec. Doc. No. 23-5).
111
Id. at ¶ 27 (quoting Rec. Doc. No. 73-3 at 3).
112
Id. at ¶ 28 (quoting Rec. Doc. No. 73-3 at 4).
113
Id. at ¶ 29 (quoting Rec. Doc. No. 73-3 at 5).
114
Id. at ¶ 30 (quoting Rec. Doc. No. 23-6).
108

Document Number: 52739 
Page 26 of 37 

support of her requests for transfer.115
Despite these multiple requests, Plaintiff claims that the Defendant actually
responded to her requests only twice.116 Watts denied Plaintiff’s transfer requests by
letter on September 27, 2011 and June 1, 2015, and Plaintiff contends that neither letter
stated that such transfer was unavailable or unduly burdensome for Defendant.117
The Court finds that there are genuine issues of fact as to whether Defendant
engaged in the interactive process in good faith and failed to provide Plaintiff with
reasonable accommodations. Although not binding on the Court, the analysis set forth
by the Third Circuit Taylor v. Phoenixville School Dist.118 is particularly helpful:
An employee's request for reasonable accommodation requires a great deal
of communication between the employee and employer [...] [B]oth parties
bear responsibility for determining what accommodation is necessary. [...]
[N]either party should be able to cause a breakdown in the process for the
purpose of either avoiding or inflicting liability. Rather, courts should look for
signs of failure to participate in good faith or failure by one of the parties to
help the other party determine what specific accommodations are
necessary. A party that obstructs or delays the interactive process is not
acting in good faith. A party that fails to communicate, by way of initiation or
response, may also be acting in bad faith. In essence, courts should attempt
to isolate the cause of the breakdown and then assign responsibility.119
The Court finds that there is a genuine issue for trial as to whether, if both qualified
and disabled, Plaintiff received a reasonable accommodation and, if she did not receive
such accommodation, a genuine issue of fact as to whose actions led to a breakdown in
the interactive process. Defendant maintains that it didn’t believe Plaintiff demonstrated

115

Id. at ¶ 32 (quoting Rec. Doc. No. 73-3 at 6-8).
Id. at ¶ 33.
117
Id. at ¶¶ 33-34.
118
184 F.3d 296 (3d Cir. 1999).
119
Id. at 312 (quoting Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281, 1285 (7th Cir. 1996));
see also Griffin, 661 F.3d at 224 (employer cannot be held liable under ADA where breakdown of interactive
process is attributable to employee, not employer).
116

Document Number: 52739 
Page 27 of 37 

that she was disabled under the ADA; however, the law is clear that Plaintiff was not
required to use legalese or “magic words” in seeking relief under the ADA. The Court
acknowledges that Defendant claims it did not receive several of these requests until after
the initiation of Plaintiff’s termination; however, Plaintiff has presented dated documents
that correspond with her claims. It is for the trier of fact to determine whether Defendant
was in receipt of the letters and, if so, when.
Further, the Court acknowledges that, simply because Plaintiff repeatedly
requested a transfer does not mean that she was entitled to a transfer under the ADA.
As noted by Defendant, a disabled employee is not entitled to the employee’s preferred
accommodations, only reasonable ones. Nevertheless, Defendant has not presented
summary judgment evidence demonstrating that Plaintiff’s transfers were denied in
accordance with the regulations governing this process. Plaintiff has presented sufficient
summary judgment evidence demonstrating questions of fact as to Defendant’s good faith
in engaging in the interactive process and Defendant’s justifications for the denial of
certain requested accommodations. As there is little evidence before the Court that
Defendant meaningfully considered or discussed with Plaintiff her transfer requests, the
Court concludes that summary judgment is inappropriate on this claim.
4.

Adverse Employment Action on Account of Disability

It is undisputed that Plaintiff was subjected to an adverse employment action;
however, the Parties dispute whether her termination was “on account of her disability” or
due to her ineffective performance rating. In the Court’s view, Defendant has presented
a legitimate, nondiscriminatory reason for Plaintiff’s termination as evidenced by her
alleged poor performance evaluations and resulting “ineffective” rating. Thus, the burden
Document Number: 52739 
Page 28 of 37 

shifts back to Plaintiff to demonstrate some pretextual discriminatory animus for this
decision.
In a discriminatory termination case brought under the ADA, the Fifth Circuit has
explained that, once an employer has demonstrated a legitimate, nondiscriminatory
reason for the plaintiff’s termination, a plaintiff must “offer sufficient evidence to create a
genuine issue of material fact either (1) that the defendant's reason is not true, but is
instead a pretext for discrimination (pretext alternative); or (2) that the defendant's reason,
while true, is only one of the reasons for its conduct, and another motivating factor is the
plaintiff's protected characteristic (mixed-motive[s] alternative).”120

At the summary

judgment stage, “‘[e]vidence demonstrating that the employer's explanation is false or
unworthy of credence, taken together with the plaintiff's prima facie case, is likely to
support an inference of discrimination even without further evidence of defendant's true
motive.’”121 Further, in the Fifth Circuit, a plaintiff’s “failure to demonstrate pretext does
not end the inquiry. Under the ADA, ‘discrimination need not be the sole reason for the
adverse employment decision ... [so long as it] actually play[s] a role in the employer's
decision making process and ha[s] a determinative influence on the outcome.’”122 Thus,
“an employee who fails to demonstrate pretext can still survive summary judgment by
showing that an employment decision was ‘based on a mixture of legitimate and
illegitimate motives ... [and that] the illegitimate motive was a motivating factor in the

120

E.E.O.C. v. LHC Group, Inc., 773 F.3d 688, 702 (5th Cir. 2014)(quoting Rachid v. Jack In The Box, Inc.,
376 F.3d 305, 312 (5th Cir. 2004) (citations and internal quotation marks omitted); see also Evans v. Tex.
Dep't of Transp., 547 F.Supp.2d 626, 640 (E.D.Tex.2007) (applying same analysis to cases under ADA),
aff'd, 273 Fed.Appx. 391 (5th Cir. 2008) (per curiam)).
121
Id. (quoting Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003)).
122
Id. (quoting Pinkerton v. Spellings, 529 F.3d 513, 519 (5th Cir. 2008) (citation and internal quotation
marks omitted)).

Document Number: 52739 
Page 29 of 37 

decision.’”123
Although Defendant has submitted ample evidence to support its legitimate,
nondiscriminatory reasons for terminating Plaintiff, Plaintiff has presented summary
judgment evidence that could support the inference that her claimed disabilities and
requests for accommodations were at least motivating factors in her termination. And at
the summary judgment stage, the evidence and all inferences must be viewed in the light
most favorable to the non-movant.124
First, Plaintiff presents evidence that she was ridiculed and mocked for her claimed
medical conditions and symptoms. Second, Plaintiff has presented evidence to suggest
that Defendant strayed from its standard policies and procedures in evaluating and
scoring her for purposes of the state mandated performance ratings.
As set forth above, Plaintiff claims that Anderson often “screamed” at her in front
of other employees and told Plaintiff she did not believe her allergies were “that bad.”125
Further, Plaintiff claims that the surprise same-day observation of her classroom on
October 4, 2011, subsequent to her complaints early in the day about her purported
accommodations not being followed, is evidence of pretext.
As to Defendant’s decision to terminate Plaintiff based on the ultimate rating of
Plaintiff as “ineffective,” Plaintiff presents evidence from which an inference could be
drawn that Defendant either strayed from its standard policies and procedures when it
came to evaluating Plaintiff, and/or Defendant failed to apply performance evaluations

123

Id. (quoting Machinchick v. PB Power, Inc., 398 F.3d 345, 355 (5th Cir. 2005) (internal quotations
omitted)).
124
Germain v. US Bank National Ass’n as Trustee for Morgan Stanley Mortgage Loan Trust 2006-7, 920
F.3d 269, 272 (5th Cir. 2019)(citing FDIC v. Dawson, 4 F.3d 1303, 1306 (5th Cir. 1993)).
125
Supra note 263.

Document Number: 52739 
Page 30 of 37 

and standards equally to its teachers. It is well-settled in the Fifth Circuit that relevant
evidence for establishing a prima facie … case “may include ... an employer's departure
from typical policies and procedures.”126
Plaintiff contends Defendant departed from state and school policy and procedures
regarding Student Learning Targets (SLTs). Plaintiff claims that Defendant failed to work
collaboratively with her, as is required by state law and school policy, in setting her
students’ SLTs.127 Plaintiff claims that Anderson and other administrators at Sorrento
provided her with a chart instructing her how to write her SLTs and, in one instance,
Rhonda Gillard, Sorrento Assistant Principal, physically wrote Plaintiff’s SLTs.128 Plaintiff
also claims that another teacher at Sorrento disclosed to Plaintiff her SLTs for her class
which Plaintiff contends had lower, more attainable requirements.129 Plaintiff further
contends other teachers were permitted to change their SLTs after they had been written
or to exclude poor performing students to determine whether the teacher’s SLTs had been
met.130 Plaintiff claims that, on at least one occasion, her SLTs were altered after they
were entered into the system.131 Plaintiff also contends that she requested training on
the scoring rubric so that she could improve her scores, but she was never given this
training that was provided to other teachers.132
Next, Plaintiff claims Defendant departed from its standard procedures in
implementing “mock observations.” Amy Dunn, Elementary Instructional Supervisor for

126

Feist v. La. Dep’t of Justice, Office of the Atty. Gen., 730 F.3d 450, 454-55 (5th Cir. 2013).
Rec. Doc. No. 54-7 at 8, 18, 23, & 65.
128
Rec. Doc. No. 108-2, ¶ 39.
129
Id. at ¶ 40.
130
Id. at ¶ 41.
131
Id. at ¶ 42.
132
Id. at ¶ 43.
127

Document Number: 52739 
Page 31 of 37 

the school system, testified that a “mock observation” is to provide supportive feedback
to a teacher and would not be included in a teacher’s final evaluation scores.133 Yet,
although Anderson advised Plaintiff she would not receive scores for her mock
observations, papers submitted in connection with Plaintiff’s administrative hearing in
support of her termination included evidence of Plaintiff’s scores on a mock
observation.134 Notably, however, this documentation states that the mock observation
performed on 2/16/13 was “not calculated toward final evaluation but only to assist her.”135
Plaintiff also challenges the inclusion of evidence of her performance evaluations during
the 2013-2014 school year at this hearing to be unfair as she missed most of that school
year due to medical leave.136
Plaintiff also maintains that Defendant departed from its standard policies and
procedures in the following ways:
On June 5, 2013, I filed a grievance with APSB alleging that Sorrento
deviated from written policies in the implementation of my Intensive
Assistance (IA) plan in the following manners:
a.
b.
c.
d.
e.
f.

I did not receive a pre-observation conference prior to one of my
observations, in violation of § 105(B)(3) of Title 28 of Bulletin 130
(Regulations for the Evaluation and Assessment of School Personnel)
I was not allowed to provide my input in the development of the plan,
in violation of § 315(E), which requires the plan to be "developed
collaboratively by the evaluator and the evaluatee";
The assistance and support required by the plan was not actually
provided by APSB;
I was not given any "follow-up comments" after my video observation,
in violation of § 315(E)(5), which requires such comments;
I was not given required feedback after my observations, in violation
of § 315(E)(7);
I was not given copies of tests and other materials pertaining to my IA

133

Rec. Doc. No. 60-7, Deposition of Amy Dunn, p. 33.
Rec. Doc. No. 60-5 at 10.
135
Id.
136
Id. at 6; 8-9.
134

Document Number: 52739 
Page 32 of 37 

g.

plan as required by § 315(E)(7); and
My IA plan did not state the action that would be taken if I did not
approve, as required by § 315(E)(8).137

Plaintiff contends the above violations, and the Sorrento administration’s contempt for
her, are demonstrated through email communications among several Sorrento
administrators and staff wherein they appear to mock Plaintiff’s requests for assistance
in increasing her rating. The following statements appear in Plaintiff’s summary judgment
evidence:138
1. “LOL!” in reference to Mrs. Anderson forgetting to meet with Mrs. Hebert
as required under the plan (Rhonda Gillard, April 2, 2015);139
2. “Ugh!!! How should I respond?” in reference to an email from Mrs.
Hebert asking to observe another teacher in order to develop her skills
(Robin Anderson, May 1, 2015);140
3. “She came in this morning. I hadn’t even responded back to her yet!
LOL!” in reference to the requested observation described above
(Mandy Gomez, March 5, 2015);141
4. “:)” in response to the email thread referencing that same observation
(Lindsay Enriquez, March 5, 2015);142
5. “Geez LouiseL” (sic) in reference to Mrs. Hebert asking to discuss some
notes with Lindsay Enriquez that Mrs. Hebert took while observing Ms.
Enriquez’[s] class (Robin Anderson, February 26, 2015);
6. “I am reading this thread and am literally laughing out loud! All I can think
of is the play ‘Who's on First?’ That is what is sounds like!!! LAWD HELP
US JESUS!!!!!!” in reference to Mrs. Hebert seeking assistance (Robin
Anderson, April 24, 2015);143
7. “Not sure if support is what she needs at this time. J” (sic) (Rhonda
137

Rec. Doc. No. 108-2, ¶ 46.
Rec. Doc. No. 108 at 27.
139
Rec. Doc. No. 108-4 at 13.
140
Id. at 2.
141
Id. at 4.
142
Id. at 5.
143
Id. at 6.
138

Document Number: 52739 
Page 33 of 37 

Gillard, April 24, 2015);144 and
8. Statements by Robin Anderson and Rhonda Gillard strongly implying
that they informed Lindsay Enriquez that Mrs. Hebert was on an IA plan,
in violation of school policy that such plans were confidential, and joking
about same.145
Based on the summary judgment evidence presented by Plaintiff, and the
requirement that the Court view all evidence at this stage in Plaintiff’s favor on
Defendant’s motion, the Court finds that Plaintiff has demonstrated genuine issues of
material fact as to whether Defendant’s legitimate, nondiscriminatory reason for her
termination was pretextual or whether her disability played a motivating factor in her
termination. Summary judgment is denied on Plaintiff’s discriminatory discharge claim.
C. Retaliation under the ADA
Plaintiff has also asserted a claim of retaliatory discharge under the ADA. In order
to establish a prima facie case of retaliation under the ADA, Plaintiff “must show that (1)
she participated in an activity protected under the statute; (2) her employer took an
adverse employment action against her; and (3) a causal connection exists between the
protected activity and the adverse action.”146 “‘If the employee establishes a prima facie
case, the burden shifts to the employer to state a legitimate, non-retaliatory reason for its
decision. After the employer states its reason, the burden shifts back to the employee to
demonstrate that the employer’s reason is actually a pretext for retaliation.’”147

An

144

Id. at 9.
Id. at 10.
146
Feist v. La. Dept. of Justice, Office of the Atty. Gen., 730 F.3d 450, 454 (5th Cir. 2013)(citing McCoy v.
City of Shreveport, 492 F.3d 551, 556-57 (5th Cir. 2007)(Title VII); Seaman v. CSPH, Inc., 179 F.3d 297,
301 (5th Cir. 1999)(ADA)).
147
Id. (quoting LeMaire v. Louisiana, 480 F.3d 383, 388-89 (5th Cir. 2007)(internal citation
omitted))(emphasis added).
145

Document Number: 52739 
Page 34 of 37 

employee can accomplish this “by showing that the adverse action would not have
occurred ‘but for’ the employer’s retaliatory motive.”148 To survive summary judgment,
“the plaintiff must show ‘a conflict in substantial evidence’ on the question of whether the
employer would not have taken the action ‘but for’ the protected activity.”149
Defendant’s argument and evidence in support of its retaliatory discharge claim is
essentially the same as that presented for Plaintiff’s discriminatory termination claim.
Defendant maintains that Plaintiff is not a qualified individual with a disability as defined
by the ADA and further insists that it has presented legitimate, nondiscriminatory reasons,
supported by record evidence, that Plaintiff was terminated solely because of her poor
performance rating. Defendant argues there is no evidence to dispute that Anderson
contacted Defendant in May 2015 to advise that Plaintiff was ineffective and to
recommend her termination, which is prior to Plaintiff’s email dated June 24, 2015,
appealing the denial of her transfer request and the filing of an EEOC complaint.
Defendant posits: “Clearly, the email with the threatened EEOC complaint could not be
the alleged pretextual reason for the adverse employment action if it post-dates the time
when termination proceedings were initiated.”150
As set forth above, the Plaintiff was not required to use special language or
demonstrate with medical evidence that she was disabled under the ADA to receive
accommodations under the ADA. The Court has already held that Plaintiff’s requests for
accommodations and transfers, coupled with the description of her medical conditions

148

Id. (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S.338, 133 S.Ct. 2517, 2533, 186 L.Ed.2d 503
(2013)(Title VII); Seaman, 179 F.3d at 301 (ADA)).
149
Id. (quoting Long v. Eastfield College, 88 F.3d 300, 308 (5th Cir. 1996)(internal quotation marks
omitted)).
150
Rec. Doc. No. 76-2 at 13 (citing Exhibits 2, 7, 6).

Document Number: 52739 
Page 35 of 37 

which were often accompanied by letters from treating physicians, were sufficient to place
Defendant on notice that it should engage in the interactive process with Plaintiff. These
requests also constitute protected activity under the ADA such that Plaintiff’s June 24,
2015 letter is not the only triggering event/date for purposes of evaluating her retaliation
claim. Thus, the Court finds that Plaintiff has presented a prima facie case of retaliation,
and that the Defendant has offered evidence of a legitimate, nondiscriminatory reason for
Plaintiff’s termination; however, for the reasons discussed at length above, the Court finds
that there is a question of fact as to whether or not this reason was legitimate and/or the
“but for” cause of Plaintiff’s accommodation denials and ultimate termination.
D. Statutory Immunity
Defendant argues alternatively that it is immune from suit under the ADA pursuant
to the statutory immunity provided to state officials under La. R.S. 9:2798.1. Defendant
contends that, as it is a political subdivision of the State of Louisiana, it was acting within
its policymaking or discretionary authority when it terminated Plaintiff in accordance with
state law. The Court located no case where this statute was applied as a defense to suit
under the ADA, a federal statute. Further, in Frank v. Parnell, the district court for the
Western District of Louisiana made clear that: “Louisiana applies qualified immunity
principles to state constitutional law claims based on ‘[t]he same factors that compelled
the United States Supreme Court to recognize a qualified good faith immunity for state
officers under § 1983.’”151

That same court held previously that “discretionary acts

immunity only applies to state law claims. It does not preclude liability under Section

151

No. 18-CV-00978, 2019 WL 2438685 at *8 (W.D. La. May 14, 2019)(quoting Mallery v. Theriot, 2013
WL 2286667, at *2 (W.D. La. May 23, 2013) (citing Roberts v. City of Shreveport, 397 F.3d 287, 296 (5th
Cir. 2005)))(internal quotation marks omitted)(emphasis added).

Document Number: 52739 
Page 36 of 37 

1983.”152 Plaintiff herein has not asserted any state law claims against Defendant, and
the Court finds La. R.S. 9:2798.1 inapplicable. Accordingly, any motion for alternative
relief under statutory immunity is DENIED.
IV.

CONCLUSION
For the reasons set forth above, the Motion for Partial Summary Judgment153 by

Plaintiff and the Defendant’s Motion for Summary Judgment154 are DENIED.
IT IS SO ORDERED.
Baton Rouge, Louisiana, this 20th day of August, 2019.

S

________________________________
SHELLY D. DICK
CHIEF DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA

152

Mills v. City of Shreveport, 58 F.Supp.3d 677, 683 (W.D. La. 2014)(Pea v. City of Ponchatoula, No.
13–542, 2014 WL 1050783 at *4 (E.D.La. Mar. 17, 2014))(emphasis added).
153
Rec. Doc. No. 72.
154
Rec.Doc. No. 76.

Document Number: 52739 
Page 37 of 37