Stokes v. Johnson

Filing 49

MEMORANDUM OPINION AND ORDER granting 36 Motion for Summary Judgment filed by Jeh C Johnson; denying 30 Motion for Summary Judgment filed by Jacqueline D Stokes. (Ordered by Judge Sidney A Fitzwater on 7/25/2017) (Judge Sidney A Fitzwater)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JACQUELINE D. STOKES,
Plaintiff,
VS.
JOHN F. KELLY, Secretary, U.S.
Department of Homeland Security,
Defendant.

§
§
§
§
§
§
§
§
§
§

Civil Action No. 3:15-CV-1178-D

MEMORANDUM OPINION
AND ORDER
Plaintiff Jacqueline D. Stokes (“Stokes”), an employee of the U.S. Department of
Homeland Security, alleges that she was denied a reasonable accommodation for her visionbased disability and retaliated against for filing EEOC complaints, in violation of the
Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. (“Rehabilitation Act”). Stokes moves
for summary judgment on her reasonable accommodation claim, and defendant John F.
Kelly, Secretary of the U.S. Department of Homeland Security (“DHS”), moves for summary
judgment dismissing all of Stokes’s claims. For the reasons explained, the court denies
Stokes’s motion, grants DHS’s motion, and dismisses this action by judgment filed today.
I
Stokes has worked for DHS as an operations support specialist, primarily responsible
for arranging employee travel, for 18 years.1 She is blind in her right eye and has reduced
1

Because both sides move for summary judgment, the court will recount the evidence
that is undisputed, and, when it is necessary to set out evidence that is contested, will do so

vision in her left eye.

From at least 2007 onward, she requested, and received,

accommodations for her disability, including extra lamps for her desk, special light bulbs,
a handheld magnifier, a magnifying device for her computer screen, and magnifying software
for use with her computer.
In late 2012 or early 2013, Stokes filed an EEO complaint alleging that she was
denied the accommodation of working in an office with natural light. The parties settled this
complaint, and DHS assigned Stokes to a workstation with natural light. In March 2014
Stokes filed another EEO complaint, alleging that she had been directed to use a nonaccessible computer, that her disability was improperly disclosed to other people, and that
her supervisor, Jeffrey Sampson (“Sampson”), retaliated against her by creating a hostile
work environment. The March 2014 complaint was the original basis for Stokes’s instant
lawsuit in this court, but she also cites later events as factual bases for her claims.
On April 7, 2014 Stokes emailed her first-line supervisor, Sampson, and her secondline supervisor, Conchetta Mason (“Mason”), requesting that, when visual aids were to be
used in meetings, she be given a large font printed copy or large font display as an
accommodation for her disability. Mason responded the same day, with copy to Sampson,
stating that such materials would be provided in advance so that Stokes could review them
at her desk or print out a copy that suited her needs. Stokes contends, however, that DHS

favorably to the side who is the summary judgment nonmovant in the context of that
evidence. See, e.g., GoForIt Entm’t, LLC v. DigiMedia.com L.P., 750 F.Supp.2d 712, 718
n.4 (N.D. Tex. 2010) (Fitzwater, C.J.) (quoting AMX Corp. v. Pilote Films, 2007 WL
1695120, at *1 n.2 (N.D. Tex. June 5, 2007) (Fitzwater, J.)).
-2-

failed to grant this accommodation for subsequent meetings, including a September 17, 2014
meeting about work assignments; an August 4-6, 2015 appropriations law class; an August
12, 2015 administration team meeting; and an August 18, 2015 customer service training.
Before initiating the March 2014 EEO action, Stokes received the highest possible
job performance rating of “Achieved Excellence” for the rating period of October 1, 2012
to September 30, 2013. For the next rating period—October 1, 2013 to September 30,
2014—Stokes received a lower but still favorable rating of “Exceeded Expectations.” For
the next rating period, however—October 1, 2014 to September 30, 2015—Stokes received
a rating of “Unacceptable.” During this period she received four written counseling letters
that cited failure to follow supervisor instructions, disrespect, unprofessional behavior,
mistakes in reviewing travel vouchers, and lack of attention to detail in her work. Mason
performed one counseling, and the others were done by John Bourdon (“Bourdon”), another
supervisor. Stokes asked for, but did not receive, supporting documentation for some of the
errors cited in the counseling letters.
Stokes filed the instant lawsuit in this court in April 2015. On July 30, 2015 she filed
another EEO complaint, alleging retaliation based on the letters of counseling. In May 2016
Stokes filed a supplemental complaint in this court that alleged retaliation based on the letters
of counseling and the “Unacceptable” performance rating, and failures to reasonably
accommodate her by providing meeting materials in advance.
Stokes now moves for partial summary judgment on her reasonable accommodation
claim, and DHS moves for summary judgment dismissing all of Stokes’s claims.
-3-

II
Each movant’s summary judgment burden depends on whether she or it is moving for
relief on a claim or defense for which she or it will have the burden of proof at trial. To be
entitled to summary judgment on a claim or defense for which the movant will have the
burden of proof, the moving party “must establish ‘beyond peradventure all of the essential
elements of the claim or defense.’” Bank One, Tex., N.A. v. Prudential Ins. Co. of Am., 878
F. Supp. 943, 962 (N.D. Tex. 1995) (Fitzwater, J.) (quoting Fontenot v. Upjohn Co., 780
F.2d 1190, 1194 (5th Cir. 1986)). This means that the moving party must demonstrate that
there are no genuine and material fact disputes and that the moving party is entitled to
summary judgment as a matter of law. See Martin v. Alamo Cmty. Coll. Dist., 353 F.3d 409,
412 (5th Cir. 2003). “The court has noted that the ‘beyond peradventure’ standard is
‘heavy.’” Carolina Cas. Ins. Co. v. Sowell, 603 F.Supp.2d 914, 923-24 (N.D. Tex. 2009)
(Fitzwater, C.J.) (quoting Cont’l Cas. Co. v. St. Paul Fire & Marine Ins. Co., 2007 WL
2403656, at *10 (N.D. Tex. Aug. 23, 2007) (Fitzwater, J.)).
When the summary judgment movant will not have the burden of proof at trial on a
specific claim or defense, then the moving party need only point the court to the absence of
evidence of any essential element of the opposing party’s claim or defense. See Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party does so, the nonmovant
must go beyond her or its pleadings and designate specific facts demonstrating that there is
a genuine issue for trial. See id. at 324; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994) (en banc) (per curiam). An issue is genuine if the evidence is such that a
-4-

reasonable jury could return a verdict for the party with the burden of proof. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The nonmovant’s failure to produce proof
as to any essential element renders all other facts immaterial. TruGreen Landcare, L.L.C.
v. Scott, 512 F.Supp.2d 613, 623 (N.D. Tex. 2007) (Fitzwater, J.). Summary judgment is
mandatory where the nonmoving party fails to meet this burden. Little, 37 F.3d at 1076.
III
The court first turns to the cross-motions for summary judgment on Stokes’s
reasonable accommodation claim.
A
The Rehabilitation Act prohibits discrimination based on disability in any activity
conducted by an executive agency. See 29 U.S.C. § 794. This prohibition includes both
discrimination in employment, see Flynn v. Distinctive Home Care, Inc., 812 F.3d 422, 425
(5th Cir. 2016), and retaliation against someone who has made a charge of discrimination,
see Cohen v. University of Texas Health Science Center, 557 Fed. Appx. 273, 277 (5th Cir.
2014) (per curiam). The substantive standards for employment discrimination under the
Rehabilitation Act are the same as those applied under the Americans with Disabilities Act
of 1990 (“ADA”), 42 U.S.C. § 12101 et seq. Flynn, 812 F.3d at 426 (citing 29 U.S.C.
§ 794(d)).
Disability discrimination includes “not making reasonable accommodations to the
known physical or mental limitations of an otherwise qualified individual with a disability
. . . unless such covered entity can demonstrate that the accommodation would impose an
-5-

undue hardship on the operation of the business of such covered entity.” 42 U.S.C.
§ 12112(b)(5)(A). To recover on 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.” Feist v. La., Dep’t of
Justice, Office of the Atty. Gen., 730 F.3d 450, 452 (5th Cir. 2013) (footnote and internal
quotation marks omitted). A “qualified individual” is one who can perform the essential
functions of the employment position, either with or without a reasonable accommodation.
42 U.S.C. § 12111(8).
B
Stokes contends that DHS failed to grant her the reasonable accommodation of
providing written materials for meetings either in advance or in large font. It is undisputed
that Stokes is a qualified individual with a disability. Stokes posits that DHS knew of her
disability and its limitations, specifically as it related to her request for meeting materials in
accessible form. She maintains that the accommodation was reasonable, as evidenced by the
fact that her supervisors at one point agreed to make this accommodation.
Stokes also maintains that DHS failed to provide this accommodation for five
meetings: an April 7, 2014 meeting; a September 17, 2014 meeting about work assignments;
an August 4-6, 2015 appropriations law class; an August 12, 2015 administration team
meeting; and an August 18, 2015 customer service training. She posits that her second-line
supervisor (Mason) even admitted in deposition testimony that there could have been five
-6-

occasions when requested meeting materials were not provided to Stokes. And Stokes
contends that, although some meetings were presented by contractors, not DHS personnel,
DHS had sufficient control over the contractors to request the materials in advance. Stokes
also maintains that an employee is not required to reiterate a request for accommodation each
time an identical situation arises.
DHS contends that it reasonably accommodated Stokes with respect to meeting
materials. It maintains that materials were not provided to Stokes for the April 7, 2014
meeting because she did not request them until later that same day; that the September 17,
2014 meeting was led by an outside vendor, and Stokes cannot state whether any materials
were even distributed at the meeting; that the August 4-6, 2015 appropriations law class was
conducted by a contract vendor whose materials DHS did not control, and that, as an
accommodation, Stokes was excused from taking the test administered during that training;
that Stokes cannot recall whether materials were even distributed at the August 12, 2015
meeting; and that the August 18, 2015 training was conducted by a contractor, not DHS, and
Stokes did not contact the contractor in advance to request the accommodation.
DHS also contends that Stokes admits that she can understand training material by
listening, and that DHS provided her with a handheld portable magnifier that could be used
during a meeting. It maintains that Stokes failed to engage in the interactive process by not
raising more specific requests for some or all meetings, because Mason asked her to provide
input on how any particular meeting or presentation medium should accommodate her, and
Stokes did not object at the time. See Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 737 (5th
-7-

Cir. 1999).
C
The court concludes that a trier of fact could not find that DHS failed to reasonably
accommodate Stokes’s disability. For some of the meetings Stokes cites, the lack of advance
written materials was due to Stokes’s failure to engage in the interactive process. See id. at
736 (“‘[T]he responsibility for fashioning a reasonable accommodation is shared between
the employee and the employer[.]’” (quoting Taylor v. Principal Fin. Grp., Inc., 93 F.3d 155,
165 (5th Cir. 1996))). This is the case for the April 7, 2014 meeting, because Stokes only
requested this particular accommodation after the meeting, as it is for the outside contractor
meetings, because the record would only enable a reasonable trier of fact to find that Stokes
in other instances asked the contractor directly for the written materials. Although an
employee is not required to continually reurge a request for reasonable accommodation, she
is obligated to be a full participant in the interactive process, rather than shifting
responsibility for a dynamic accommodation entirely to her superiors. See id. at 737.
To the extent that written materials were not provided in advance for any other
meetings, Stokes admits that she can normally understand by listening, and if listening fails,
she requests after the meeting ends that the presenter provide her written materials. Because
a reasonable accommodation is only required when necessary to perform an essential
function of the job, a reasonable trier of fact could not find that DHS failed to reasonably
accommodate Stokes’s disability with regard to these other meetings. See Brumfield v. City
of Chicago, 735 F.3d 619, 632 (7th Cir. 2013) (holding that duty to accommodate only arises
-8-

when employee requires accommodation to perform essential functions of job).
Accordingly, the court holds that DHS is entitled to summary judgment dismissing
Stokes’s reasonable accommodation claim, and that Stokes is not entitled to summary
judgment on this claim.
IV
The court next turns to DHS’s motion for summary judgment on Stokes’s retaliation
claim.
A
Because Stokes relies on circumstantial evidence to support her Rehabilitation Act
retaliation claim, the claim is properly analyzed under the McDonnell Douglas2 burden
shifting framework. See Shannon v. Henderson, 275 F.3d 42 (5th Cir. 2001) (per curiam)
(unpublished table decision) (holding that McDonnell Douglas framework, which is used in
cases brought under Title VII, applies to retaliation cases under Rehabilitation Act); see also
Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998) (“McDonnell Douglas
provides the appropriate burden-shifting analysis for claims of unlawful retaliation under the
ADA[.]”). As modified, the McDonnell Douglas framework consists of three stages. First,
Stokes must establish a prima facie case of retaliation by demonstrating that “(1) [she]
engaged in a protected activity, such as filing an Equal Employment Opportunity complaint;
(2) [DHS] took adverse employment action against [her]; and (3) a causal connection existed

2

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
-9-

between the protected activity and the adverse action.” Shannon, 275 F.3d at 42 (citing
Seaman v. CSPH, Inc., 179 F.3d 297, 301 (5th Cir. 1999)).
Second, if Stokes establishes a prima facie case, the burden shifts to DHS to articulate
a legitimate, nondiscriminatory reason for the employment action taken against Stokes. See
Cohen, 557 Fed. Appx. at 278 (citing Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 396 (5th
Cir. 1995)). DHS’s burden is one of production, not proof, and involves no credibility
assessments. See, e.g., West v. Nabors Drilling USA, Inc., 330 F.3d 379, 385 (5th Cir. 2003).
This “burden requires the production of admissible evidence in support of its
nondiscriminatory reasons.” Hervey v. Miss. Dep’t of Educ., 404 Fed. Appx. 865, 868 (5th
Cir. 2010) (per curiam) (citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255
(1981)).
Third, if DHS meets its production burden by producing evidence of a legitimate,
nondiscriminatory reason for the adverse employment action, “the presumption of
discrimination created by [Stokes’s] prima facie case disappears,” Machinchick v. PB Power,
Inc., 398 F.3d 345, 350 (5th Cir. 2005), and “the burden shifts back to [Stokes] to show that
the nondiscriminatory justification was mere pretext for discrimination or retaliation,”
Cohen, 557 Fed. Appx. at 278 (citing Seaman, 179 F.3d at 300-01). Stokes must show that
the legitimate, nondiscriminatory reason proffered by DHS “[is] not its true reason[], but
[was] a pretext for discrimination.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 143 (2000) (quoting Burdine, 450 U.S. at 253). “In the context of retaliation claims
brought under the Rehabilitation Act, a plaintiff demonstrates pretext where she shows that
- 10 -

the adverse action would not have occurred but for the protected activity.” Cohen, 557 Fed.
Appx. at 278 n.6 (brackets and internal quotation marks omitted) (citing Feist, 730 F.3d at
454). Therefore, to survive summary judgment, Stokes must “offer sufficient evidence to
create a genuine issue of material fact . . . that [DHS’s] reason is not true, but is instead a
pretext for discrimination[.]” Rachid v. Jack In The Box, Inc., 376 F.3d 305, 312 (5th Cir.
2004) (citation and internal quotation marks omitted) (describing standard in context of age
discrimination case). At the summary judgment stage, of course, Stokes is only obligated to
raise a genuine issue of material fact regarding pretext. See, e.g., Jackson v. Fed. Express
Corp., 2006 WL 680471, at *6 (N.D. Tex. Mar. 14, 2006) (Fitzwater, J.) (“Because
[defendant] has satisfied its burden to produce a legitimate, nondiscriminatory reason for
[plaintiff’s] discharge, in order for [plaintiff] to survive summary judgment, [s]he must create
a genuine and material fact issue regarding the ultimate question of discrimination.”).
These three steps constitute the McDonnell Douglas framework.

“Although

intermediate evidentiary burdens shift back and forth under this framework, ‘[t]he ultimate
burden of persuading the trier of fact that the defendant intentionally discriminated against
the plaintiff remains at all times with the plaintiff.’” Reeves, 530 U.S. at 143 (alteration in
original) (quoting Burdine, 450 U.S. at 253).
B
The court assumes arguendo that Stokes has established the first and third elements
of a prima facie case of retaliation. As for the second element, the court concludes that the
only adverse employment action that Stokes alleges is the “Unacceptable” performance
- 11 -

rating for the period from October 1, 2014 to September 30, 2015, which prevented her from
receiving a Within Grade Increase in her pay for the next year. See Fierros v. Tex. Dep’t of
Health, 274 F.3d 187, 194 (5th Cir. 2001) (holding that denial of pay increase can be adverse
employment action), overruled on other grounds by Desert Palace, Inc. v. Costa, 539 U.S.
90, 92 (2003). Although Stokes contends that the counseling letters were also adverse
employment actions, the law in this circuit holds that they are not. See Hernandez v.
Johnson, 514 Fed. Appx. 492, 499 (5th Cir. 2013) (per curiam); DeHart v. Baker Hughes
Oilfield Operations, Inc., 214 Fed. Appx. 437, 442 (5th Cir. 2007) (per curiam) (“[T]here
were colorable grounds for the warning and a reasonable employee would have understood
a warning under these circumstances was not necessarily indicative of a retaliatory
mind-set.”).
C
The court now turns to the second stage and determines whether DHS has met its
burden to articulate legitimate, nonpretextual reasons for its adverse employment action
towards Stokes. DHS maintains that it set out legitimate reasons for its action in the
performance evaluation document itself: Stokes’s lack of communication, failure to
cooperate with coworkers, and lack of technical proficiency in her work product. And DHS
posits that, to the extent the performance evaluation cites the counseling letters as support,
the letters also each set out their independent factual bases: Stokes’s lack of respect in
confrontations with supervisors, mistakes in reviewing travel vouchers, and lack of technical
proficiency. Accordingly, DHS has met its burden of producing evidence of legitimate,
- 12 -

nondiscriminatory reasons for its action. See Daigle, 70 F.3d at 396.
D
Because DHS has met its burden of production, the burden shifts back to Stokes to
present evidence that would enable a reasonable jury to find that DHS’s reasons are
pretextual.
Stokes contends that DHS acted in retaliation for her EEO activity. She posits that,
according to the summary judgment evidence, failing performance ratings were rare under
second-line supervisor Mason; that Mason would have been open to a higher performance
rating for Stokes if Bourdon had not insisted on the “Unacceptable” rating; that other
coworkers and customers spoke favorably of Stokes’s performance; and that Stokes never
received supporting documents to justify the adverse actions against her. She also maintains
that her first-line supervisors (Sampson and Bourdon) inexplicably denied knowledge of her
disability during discovery, even though they were aware that she had initiated EEO action.
The court concludes that a reasonable trier of fact could not find that DHS’s reasons
for the adverse performance rating are pretextual. Stokes does not rebut the legitimate
performance issues—mistakes in reviewing travel vouchers, other deficits in technical
proficiency, and poor communication—underlying the “Unacceptable” performance rating.
Although she does offer a different version of the facts that led to some of the confrontations
with Bourdon, she does not substantively contradict the many examples of technical errors
and poor communication that would only enable a reasonable trier of fact to find that the
“Unacceptable” rating is amply supported. She has therefore failed to point to evidence that
- 13 -

she would not have been given the rating “but for” a retaliatory motive. See Feist, 730 F.3d
at 454. Accordingly, the court holds that DHS is entitled to summary judgment dismissing
Stokes’s retaliation claim.3
*

*

*

For the reasons explained, the court denies Stokes’s motion for partial summary
judgment, grants DHS’s motion for summary judgment, and dismisses this action by final
judgment filed today.
SO ORDERED.
July 25, 2017.

_________________________________
SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE

3

In her complaint filed in this lawsuit, Stokes appears to allege that her confidential
information was improperly disclosed to other employees, in violation of the ADA. DHS
contends, and Stokes does not dispute, that administrative remedies were not exhausted for
parts of this claim. Stokes also fails to set out the elements of this claim, or point to evidence
of each element, in response to DHS’s motion for summary judgment seeking dismissal of
all claims. Accordingly, the court concludes that Stokes is not seeking relief based on this
claim. See Vaughn v. Mobil Oil Exploration and Producing Se., Inc., 891 F.2d 1195, 1198
(5th Cir. 1990) (“Ample authority exists that trial courts will not rule on claims—buried in
pleadings—that go unpressed before the court.”).
- 14 -