Smith v. Sweeny Independent School District et al
Filing
42
MEMORANDUM OPINION AND ORDER granting 35 First MOTION for Summary Judgment (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
ENTERED
October 29, 2018
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
LISA MARIE SMITH,
David J. Bradley, Clerk
§
§
§
§
Plaintiff,
v.
CIVIL ACTION NO. G-17-0123
§
§
§
§
§
§
SWEENY INDEPENDENT SCHOOL
DISTRICT,
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff,
defendant,
Lisa
Marie
Smith,
brings
this
action
the Sweeny Independent School District
against
( "SISD") ,
for
discriminatory termination, failure to accommodate, and retaliation
in violation of the Americans with Disabilities Act, as amended, 42
U.S. C.
12111,
§
et seq.
("ADA") ; for retaliatory termination in
violation of the Family and Medical Leave Act ("FMLA"), 29 U.S.C.
§
2601,
et seq.;
violation
of
and for sexual harassment and retaliation in
Title
VII
of
the
("Title VII"), as amended, 42 U.S.C.
Civil
Rights
Act
2000e-2, et seq.
§
of
1964
Pending
before the court are Defendant SISD's Motion for Summary Judgment
("Defendant's MSJ")
SISD' s
MSJ
Defendant's
(Docket Entry No. 35), Plaintiff's Response to
("Plaintiff's Response")
Reply
("Defendant's Reply")
to
Plaintiff's
(Docket Entry No.
Response
(Docket Entry No. 40).
forth below, SISD's MSJ will be granted.
to
39),
SISD' s
and
MSJ
For the reasons set
I.
Standard of Review
Summary judgment is authorized if the movant establishes that
there is no genuine dispute about any material fact,
entitles it to judgment.
material
facts
are
Fed. R. Civ. P. 56(c).
"genuine"
if
the
evidence
and the law
Disputes about
is
such
that
a
reasonable jury could return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2511 (1986).
The
Supreme Court has interpreted the plain language of Rule 56(c) to
mandate the entry of summary judgment "after adequate time for
discovery and upon motion,
showing
sufficient
to
against a party who fails to make a
establish
the
existence
of
an
element
essential to that party's case, and on which that party will bear
the burden of proof at trial."
s. Ct. 2 54 8
I
Celotex Corp.
v.
Catrett,
106
2 55 2 ( 19 8 6)
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."
37 F.3d 1069, 1075 (5th Cir. 1994)
S.
Ct. at 2553-2554)
initial
burden,
the
Little v. Liquid Air Corp. ,
(en bane)
(quoting Celotex, 106
"If the moving party fails to meet this
motion must
be
denied,
regardless
of
the
nonmovant's response."
Id.
this burden,
requires the nonmovant to go beyond the
pleadings
Rule 56(c)
and
show
by
If, however, the moving party meets
affidavits,
depositions,
answers
to
interrogatories, admissions on file, or other admissible evidence
-2-
that specific facts exist over which there is a genuine issue for
trial.
Id.
In reviewing the evidence "the court must draw all
reasonable inferences in favor of the nonmoving party, and it may
not make credibility determinations or weigh the evidence."
Reeves
v. Sanderson Plumbing Products, Inc., 120 S. Ct. 2097, 2110 (2000).
Factual controversies are to be resolved in favor of the nonmovant,
"but only when there is an actual controversy, that is, when both
parties have submitted evidence of contradictory facts."
37 F.3d at 1075.
Little,
"[T]he nonmoving party's burden is not affected
by the type of case; summary judgment is appropriate in any case
'where critical evidence is so weak or tenuous on an essential fact
that it could not support a judgment in favor of the nonmovant.'"
Id.
(quoting Armstrong v. City of Dallas, 997 F.2d 62, 67 (5th Cir.
1993)).
II.
Undisputed Facts 1
SISD employed Smith as Special Programs Coordinator from 2001
until August of 2016. 2
In 2003 or 2004 Smith began an extra-marital consensual sexual
relationship with Randy Miksch, SISD's Superintendent, that lasted
1
See Factual Background, Plaintiff's Amended Complaint, Docket
Entry No. 14, pp. 4-7; Summary Judgment Facts, Defendant's MSJ,
Docket Entry No. 35, pp. 2-5 ~~ 4-10; and Factual Background,
Plaintiff's Response, Docket Entry No. 39, pp. 9-17.
2
0ral/Videotaped Deposition of Lisa Marie Smith ("Smith
Deposition"), pp. 11:2-4, 47:20-48:3, Exhibit A to Plaintiff's
Response, Docket Entry No. 39-1, pp. 6, 24-25.
-3-
until September of 2011 when Miksch's wife learned of it. 3
Miksch
nevertheless continued to pursue Smith at work until at least 2014
when Betty Bartness, a friend of Miksch's son, began working near
Smith's desk. 4
Thereafter Miksch would drive by Smith's
On January 7,
leave
to
care
for
2016,
her
house. 5
Smith requested and was placed on FMLA
father
who
died on
February
1,
2016. 6
Thereafter, effective February 2, 2016, Smith was placed on FMLA
leave due to her own serious illness. 7
When her FMLA leave expired on April 8,
doctors did not release her to return to work,
meeting with Superintendent Miksch,
Human Resources,
Gerald Nixon,
2016,
8
and Smith's
Smith requested a
Assistant Superintendent of
and HR Specialist
and Miksch's
Secretary, Janet Slaughter, to discuss her employment with SISD. 9
3
Id. at 86:18-87:15, 98:19-25, pp. 40-42.
4
Id. at 104:2-106:10, pp. 45-47.
5
Id. at 130:7-132:8, pp. 62-64.
6
Id. at 17:5-9, 19:5-8, pp. 9, 10.
See also Notice of
Placement on Family and Medical Leave, Defendant's Appendix to
SISD's MSJ ("Defendant's Appendix"), pp. 58-60, Docket Entry
No. 35-1, pp. 66-67.
7
Id. at 19:9-20:5, pp. 10-11. See also Notice of Placement on
Family and Medical Leave, Defendant's Appendix, pp. 61-63, Docket
Entry No. 35-1, pp. 69-71.
8
Id. at 22:23-26:8, 37:3-6, 43:11-23; Defendant's Appendix,
pp. 10-11, 14, 15, Docket Entry No. 35-1, pp. 14-15, 18, 19.
9
See April 22, 2016, email from Smith to Nixon, Exhibit 6 to
Transcription of
Videotaped Deposition of
Janet
Slaughter
("Slaughter Deposition") , Exhibit F to Plaintiff's Response, Docket
Entry No. 39-6, p. 31.
-4-
The meeting was held on April 22, 2016, and at the meeting Smith
requested an accommodation of six weeks additional leave, hoping
that her doctors would allow her to return to work by then. 10
Smith
also asked to speak with HR Specialist Jackie Hornbeck because she
"wanted to apply for some type of disability either with Social
Security or TRS. 1111
After the April 22nd meeting and again on April 27th, 12 Smith
submitted applications for paid leave from SISD,s sick leave bank
-- both of which were denied.
13
When Smith asked Nixon why her
requests for sick bank leave time were denied, he did not respond. 14
In June of 2016 Smith applied for Social Security Disability
Benefits and Teacher Retirement Disability, which were granted. 15
Smith,s employment ended on July 31, 2016, when her contract
expired without an offer of renewal from SISD. 16
10
Smith Deposition, p. 46:10-15, Exhibit
Response, Docket Entry No. 39-1, p. 23.
11
Id. at 50:2-6;
No. 3 5-1, p. 21.
Defendant,s Appendix,
p.
A to
17,
Plaintiff,s
Docket Entry
12
F
to
13
F
to
See Exhibit 12 to Slaughter Deposition, Exhibit
Plaintiff,s Response, Docket Entry No. 39-6, pp. 32-40.
See Exhibit 13 to Slaughter Deposition, Exhibit
Plaintiff,s Response, Docket Entry No. 39-6, pp. 41-43.
14
Transcription of Videotaped Deposition of Gerald Nixon
("Nixon Deposition 11 ) , pp. 99:16-100:22, Exhibit G to Plaintiff,s
Response, Docket Entry No. 39-7, pp. 46-47.
15
Smith Deposition, pp. 66:4-67:12, Exhibit A to Plaintiff,s
Response, Docket Entry No. 39-1, pp. 35-36.
16
Smith Deposition, p. 56:14-22; Defendant,s Appendix, p. 18,
Docket Entry No. 35-1, p. 22.
See also Defendant,s MSJ, Docket
Entry No. 35, p. 4 ~ 8 (stating that Smith,s employment ended
August 1, 2016).
-5-
On October 11, 2016, Smith filed a grievance with SISD against
former
Superintendent
Miksch
based
on
their
long-term
sexual
relationship. 17
On October 13, 2016, Smith filled out an Intake Questionnaire
with the Equal Employment Opportunity Commission ("EEOC") , 18 and on
October
14,
2016,
Smith
filed
with
the
EEOC
Discrimination against SISD based on disability. 19
a
Charge
of
On November 27,
2016, Smith filed with the EEOC an amended Charge of Discrimination
against SISD based on disability, sex, and retaliation. 20
III.
Analysis
SISD argues that it is entitled to summary judgment on Smith's
ADA claims because Smith is unable to present evidence capable of
establishing that she is a qualified individual with a disability,
that
SISD
failed
to
honor
Smith's
request
for
a
reasonable
accommodation, or that SISD's leave policy was not uniformly and
consistently applied to all employees; and that it is entitled to
summary judgment on Smith's Title VII claims because Smith is
17
Employee Complaint Form - Level One, Defendant's Appendix,
p. 83, Docket Entry No. 35-1, p. 91.
18
Exhibi t 1 to Plaintiff's Complaint, Docket Entry No. 1-2.
Although this and other exhibits are referenced in Plaintiff's
Amended Complaint (Docket Entry No. 14), they are only attached to
Plaintiff's Original Complaint (Docket Entry No. 1).
19
Exhibit 2 to Plaintiff's Complaint, Docket Entry No. 1-3.
See also Defendant's Appendix, p. 97, Docket Entry No. 35-1,
p. 107.
20
Exhibit 3 to Plaintiff's Complaint, Docket Entry No. 1-4.
See also Defendant's Appendix, p. 84, Docket Entry No. 35-1, p. 92.
-6-
unable to establish a prima facie case of sexual harassment under
Title VII.
SISD also argues that Smith is unable to establish a
prima facie case of retaliation under the ADA, Title VII, or the
FMLA.
Smith argues
in response
that
SISD
is not
entitled to
summary judgment on her ADA, FMLA, or Title VII claims.
A.
SISD is Entitled to Summary Judgment on Smith's ADA Claims
SISD argues that it is entitled to summary judgment on Smith's
ADA claims for disability discrimination because Smith was not a
qualified individual with a disability, and that even if she was,
SISD
granted
Smith's
only
requested
accommodation,
i.e.,
an
additional six weeks of leave. 21 Asserting that "Smith was entitled
to a reasonable accommodation of either a six-week extension of her
leave or placement in another available position for which she was
qualified, " 22 Smith argues that SISD is not entitled to summary
judgment on her ADA claims because she was qualified for the job, 23
she
suffered
disability
an
when
adverse
SISD
employment
"denied
her
action
requests
on
account
[for
a
of
her
reasonable
accommodation] and quit responding to her, failing to engage in the
Defendant's MSJ, Docket Entry No. 35, pp. 6-10 ~~ 16-25;
Defendant's Reply, Docket Entry No. 40, pp. 5-9.
Although SISD
also argues that it is entitled to summary judgment on plaintiff's
claim for retaliation under the ADA, see id. at 10-11 ~~ 26-28,
plaintiff has not alleged an ADA claim for retaliation.
See
Plaintiff's Amended Complaint, Docket Entry No. 14, pp. 8-9 ~~ 2738 ("Count One - ADAAA Claims of Discriminatory Termination and
Failure to Accommodate").
21
22
Plaintiff's Response, Docket Entry No. 39, p. 26.
23
Id. at 21-25.
-7-
required interactive process, " 24 and she has raised fact
issues
regarding pretext and that her disability was a motivating factor.
1.
25
Applicable Law
"The ADA makes it unlawful for an employer to discriminate
against 'a qualified individual with a disability because of the
disability
of
such
individual
in
regard
to
job
application
procedures,
the hiring, advancement, or discharge of employees .
. and other terms, conditions, and privileges of employment.'"
Rodriguez v. ConAgra Grocery Products Co., 436 F.3d 468, 474
Cir. 2006)
(quoting 42 U.S.C.
§
12112(a)).
(5th
Plaintiff may establish
an ADA discrimination claim by using direct evidence or by using
the indirect method of proof set forth in McDonnell Douglas Corp.
v. Green,
93 S. Ct. 1817
(1973).
F.3d 297, 300 (5th Cir. 1999).
See Seaman v. CSPH,
Inc.,
179
Direct evidence of discrimination
"is evidence that, if believed, proves the fact of discriminatory
animus without inference or presumption."
Box,
Inc., 376 F.3d 305, 310 n.6
Rachid v. Jack In The
(5th Cir. 2004).
Plaintiff has
not cited direct evidence of discrimination and does not argue that
this
is
framework
a
direct
evidence
plaintiff
may
case.
Under
establish
a
the
McDonnell
prima
facie
Douglas
case
of
discrimination based on disability by showing"' (1) that [s]he has
a disability;
(2)
24
[s]he was qualified for the
Id. at 25.
25
that
Id. at 25-26.
-8-
job;
[and]
(3)
that
[s]he was subject to an adverse employment decision on
account of h[er]
disability.'"
E.E.O.C. v. LHC Group,
Inc.,
773
F.3d 688, 697 (5th Cir. 2014).
Discrimination
includes
failure
to
make
"reasonable
accommodations to the known physical or mental limitations of an
otherwise qualified individual with a disability . . . unless . . .
42 u.s.c.
the accommodation would impose an undue hardship."
§
12112 (b) (5) (A).
accommodate
proving:
claim,
"(1)
disability;'
To
a
establish
plaintiff
a
must
the plaintiff is a
prima
cite
facie
failure-to-
evidence
capable
of
'qualified individual with a
(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. Louisiana, Department of Justice, Office of the Attorney
General, 730 F.3d 450, 452 (5th Cir. 2013).
2.
Application of the Law to the Undisputed Facts
SISD does not dispute that Smith is disabled or that it knew
about her alleged disability and physical limitations.
At issue is
whether Smith was a "qualified individual," and whether SISD failed
to provide her a reasonable accommodation and/or failed to engage
in the interactive process to identify a reasonable accommodation. 26
An employee is a "qualified individual" under the ADA if she,
"with
or
without
reasonable
accommodation,
26
can
perform
Defendant's MSJ, Docket Entry No. 35, pp. 5-10
Plaintiff's Response, Docket Entry No. 39, pp. 21-25.
-9-
~~
the
11-25;
essential functions of the employment position that such individual
holds or desires."
Celanese Corp.,
("To
avoid
individual,
essential
2)
42
u.s.c.
§
12111(8)
101 F.3d 1090, 1093
summary
judgment
on
See Turco v. Hoechst
(5th Cir. 1996)
whether
he
(per curiam)
is
a
qualified
[plaintiff] needs to show 1) that he could perform the
functions
of
the
job in spite
of
his
disability or
that a reasonable accommodation of his disability would have
enabled him to perform the essential functions of the job.").
SISD argues that Smith was not a qualified individual because
"[a]n essential function for nearly every job is the ability to
appear for work, " 27 and "[w] hen an employee's physician will not
release them to return to work, they are not a qualified individual
under the act." 28
SISD argues that Smith's "deposition testimony
and doctors statements clearly indicate that she could not perform
the
essential
functions
of
her
job,
even
with
reasonable
accommodations, and therefore was not a qualified individual under
the ADA. " 29
Asserting that Smith "produced no evidence whatsoever
that she would have been able to perform the essential elements of
her
job
or
any
other
job
with
or
without
reasonable
accommodations," 30 SISD argues that Smith "has failed to meet her
27
Defendant's MSJ, Docket Entry No. 35, p. 7 , 18.
28
Id. , 19.
29
Id. at 8 , 21.
30
Defendant' s Reply, Docket Entry No. 4 0, p. 6 , 9.
-10-
burden of production in response to
[its MSJ]
on this issue, and
therefore, her ADA claim cannot survive." 31
Smith testified at her deposition that
she was
unable
to
perform the functions of her job as Special Programs Coordinator,
but
argues
that
"the
controlling
question
is
whether
a
32
brief
extension of a leave of absence or job reassignment would have been
reasonable accommodations for Smith. " 33
Smith argues that "[t] he
record clearly demonstrates that [she] asked for a brief extension
of her leave of absence." 34
Smith argues that
[i]n this case, granting [her] leave for six weeks, as
she
requested,
would
have
been
a
reasonable
accommodation. In fact, it is what Sweeny ISD offered to
her (Ex. G., Nixon Dep. 90-91), but then denied without
explanation. Even more troubling, her request was denied
despite Sweeny ISD having previously granted paid leave
from the sick bank for all requests with only two
exceptions by one employee relating to an elective lap
band surgery and resulting complications.
(Ex. E, Sick
Leave Bank Policy Produced by Sweeny ISD.)
Nixon could
not articulate any basis for his decision to deny Smith's
appeal of the denial of her sick leave bank request.
(Ex. G, Nixon Dep. at 54-55.)
He did not even recall
what he considered to make his decision. Id. at 99-100.
31Id.
32
Smith Deposition, p. 34:2-3 (Smith stated, "I could not work
in my capacity at work, no, in what it required of me, no."), and
60:23-61:3 ("Q.
. Did you -- did you believe that you were
capable of going back to work before
in that time period
between, say, June 1st and July 31st? A. Capable, yes.
If I had
had accommodations, depending on the job. Not the job that I had,
I know that I couldn't have done that job."), Defendant's Appendix,
pp. 13 and 19-20, Docket Entry No. 35-1, pp. 17 and 23-24.
33
Plaintiff's Response, Docket Entry No. 39, p. 21.
34
Id. at 23.
-11-
He just knew that he did not respond to her requests for
information.
Id.
. Nixon does not remember why a
six-week leave was not a reasonable accommodation for
Smith.
(Ex. G, Nixon Dep. at 65.) He does not remember
thinking "one way or the other" about whether her request
should be granted. Id. at 77. He had no opinion on the
issue.
Id. at 79.
He does not remember her six-week
request coming up at their April 22 meeting. Id. at 94.
But he does remember [that] granting her leave from the
sick bank leave was discussed.
Id. 35
Asserting that she "also asked for a different position with the
school
district," 36
Smith
also
argues
that
Nixon
"suggested [she] might could be a teacher's aid." 37
and
Miksch
Smith argues
that after the April 22, 2016, meeting, "no one with [SISD] reached
out to her again to discuss her requested accommodations,
other
than to summarily tell her that her request for sick leave was
denied and the denial was upheld by Nixon." 38
Asserting that she
asked for reasonable accommodations, Smith argues that SISD "denied
her requests and quit responding to her, failing to engage in the
required interactive process." 39
(a)
"'An
SISD Engaged in the Interactive Process and Granted
Smith's Request for Six Weeks of Unpaid Leave
employee
disability has
the
35
needs
an
accommodation
responsibility of
Id. at 23-24.
38
who
Id. at 25.
-12-
because
of
a
informing her employer.'"
Griffin, Sr. v. United Parcel Service, Inc., 661 F.3d 216, 224 (5th
Cir. 2011)
(quoting E.E.O.C. v. Chevron Phillips Chemical Co., LP,
570 F.3d 606, 621 (5th Cir. 2009)).
Once an employee requests an
accommodation for a disability, ADA regulations state that "it may
be necessary for the
[employer]
to initiate an informal,
inter-
active process" designed to identify reasonable accommodations.
C.F.R.
§
1630.2 (o) (3).
See also Taylor v.
29
Principal Financial
Group, Inc., 93 F.3d 155, 165 (5th Cir.), cert. denied, 117 S. Ct.
586 (1996)
("[T]he employee's initial request for an accommodation
triggers the employer's obligation to participate in the
interactive process of determining one.").
"[W]hen an employer's
unwillingness to engage in a good faith interactive process leads
to a failure to reasonably accommodate an employee,
violates the ADA."
State
University,
the employer
Cutrera v. Board of Supervisors of Louisiana
429
F.3d
108,
112
(5th
Cir.
2005)
(citing
Loulseqed v. Akzo Nobel Inc., 178 F.3d 731, 736 (5th Cir. 1999)).
But failure to participate in an interactive process does not alone
constitute a violation of
the ADA.
See Picard v.
Parish Hospital, 423 F. App'x 467, 470 (5th Cir. 2011)
St.
Tammany
(per curiam)
(rejecting argument that failure to engage in interactive process
constitutes a per se violation of the ADA) .
be found
"' [A] n employer cannot
to have violated the ADA when responsibility for
breakdown of the "informal,
the
interactive process" is traceable to
the employee and not the employer.'"
-13-
Griffin, 661 F.3d at 224.
Although
Smith argues
that
SISD
failed
to
engage
in
the
interactive process, her own evidence contradicts that argument by
showing that SISD officials did, in fact, meet with her to discuss
her limitations and that SISD provided Smith the only accommodation
that she requested, i.e., a six-week extension of unpaid leave.
In
pertinent part, Smith testified that after receiving an April 18,
2016, letter from SISD's Director of Human Resources, Gerald Nixon,
reminding her that her FMLA leave had ended on April 8, 2016, and
that unless she could be released to return to work by April 25,
2016, SISD would move forward with reassignment for her position,
and he would recommend that her employment be terminated, 40 Smith
asked
to meet
with SISD
officials
and
did meet
April 22, 2016, to discuss her future with SISD. 41
with
them on
At the April 22,
2016, meeting Smith discussed her limitations with SISD officials
and asked them to hold a job -- her position or another position -for her until she was able to return to work.
Smith testified:
Q.
Okay.
On or about April 22nd, how's that, you had
a meeting. Who'd you have a meeting with?
A.
It was Gerald Nixon, Randy Miksch, Janet Slaughter,
and at one point she brought in Jackie Hornbeck.
Q.
Okay.
And what -- who set up this meeting?
you request the meeting?
Did
40
See April 18, 2016, Letter to Lisa Smith from Gerald Nixon,
included in Exhibit G to Plaintiff's Response, Docket Entry
No. 39-7, p. 55.
41
Smith Deposition, pp. 45:22-46:9, Exhibit A to Plaintiff's
Response, Docket Entry No. 39-1, pp. 22-23.
-14-
A.
I requested the meeting.
Q.
Okay.
And what -- why -- why did you request the
meeting?
Q.
Okay.
What
meeting?
A.
To see about where we stood, where I stood with the
district .
. I wanted to know, because I wasn't
able to return to work, am I still an employee,
what is my future here, can you please hold my job
open for me with a temporary until I can return
basically is why I was going to ask them to please
hold it for me.
Q.
Okay.
A.
Or at least
position.
Q.
But --
A.
Probably not that position.
Q.
Okay.
A.
But a job with the district, because I had been
there so long, I didn't want to lose my job.
Q.
A.
Okay.
So you requested that they -- they hold a
job open; not -- not necessarily your position, but
-- but just have a position for you?
Yes. And I believe I asked for six weeks.
Q.
Six weeks?
A.
In hopes that the doctor would release me.
Q.
Okay.
And how did they respond?
or I'm sorry.
Stop.
why did you
request
the
And my
job,
my
job.
Maybe
Yes.
-15-
not
that
So you asked
You asked for six weeks additional time?
A.
the
Q.
Okay.
A.
I believe.
Q.
Right -- that -- right --
A.
Yes.
Q.
around there?
Okay.
So that would put it,
let's see, somewhere in May or maybe the beginning
of June, I guess, the beginning of June. So you're
-- you're requesting until then to be able -- to be
off work until somewhere around the beginning of
June?
A.
Six weeks, whatever that would have been.
I don't
know.
I didn't -- I just knew six weeks may be
enough for my doctors to go and release me.
Q.
Okay.
A.
I don't recall exactly who said what, but they were
talking about a different position that didn't
require so much cognitive thought with it, numbers
and calculations and budget information. Something
like a teacher's aid is what they had said.
Q.
Okay.
And so they agreed to the six -- to holding
your job for six weeks?
A.
don't recall them agreeing to hold the job for
six weeks, no.
I just remember them saying that I
could possibly do another position, like they would
look to see what other positions that would be
available that I possibly could do. 42
Q.
But you asked for six weeks additional time?
A.
Yes.
Q.
And they -- nobody in the meeting said,
not going to do that"?
42
at 44:12-47:19, pp. 21-24.
Id.
And that was on April 22nd?
And so that -- how did they respond?
I
-16-
"No, we're
A.
No.
Q.
Okay.
And, in fact, they -- they didn't fire you
in May or June; is that correct?
A.
No.
Q.
Okay. So they essentially held it open for the six
weeks that you requested?
A.
They did
it is so not clear to me about my
employment after that meeting. So I'm going to say
yes, they did, because I thought I had my job.
Even as I went to my doctor's appointment in
August, I hadn't been told differently.
So I
thought that they were holding it for me. 43
Q.
So you -- you -- you asked for the six weeks at the
meeting?
A.
(Nodding affirmatively.)
Q.
And then those six weeks expired,
still employed?
A.
Yes. 44
which you were
This testimony from Smith's deposition establishes that during
the April 22,
2016,
meeting Smith asked SISD to hold a position
open for her for six weeks in hopes that she would be able to
return to work then,
that SISD officials discussed with her the
possibility of reassigning her to a different position that would
better suit her abilities, and that SISD extended her unpaid leave
for at least the six weeks she requested.
43
Id. at 49:8-23, p. 26.
44
Id. at 60:7-12, p. 32.
-17-
Although Smith argues
that following the April 22,
2016,
meeting she applied for six
weeks of paid leave from the district's sick leave bank and that
SISD "denied her requests and quit responding to her,
failing to
engage in the required interactive process," 45 Smith has failed to
cite any evidence capable of establishing either that she requested
six weeks of paid leave from the sick leave bank as a reasonable
accommodation for her disability, or that receiving six weeks of
paid
leave
would
have
constituted
a
reasonable
accommodation
because receiving six weeks of paid leave would have enabled her to
perform the essential functions of her job or any other job that
SISD had available.
See Turco,
101
F.3d at
1093
(defining a
"reasonable accommodation" as an accommodation that would allow the
employee
available
to
perform
position) .
the
functions
Moreover,
of
the
her
ADA
position or
does
not
another
require
an
employer to allow a disabled employee to take indefinite leave for
purposes of accommodation.
See Bennett v.
Calabrian Chemicals
Corp., 324 F. Supp. 2d 815, 837-38 (E.D. Tex. 2004).
(b)
Plaintiff Has Failed to Cite Evidence Capable of
Establishing that Reasonable Accommodations Existed
Smith argues that during that April 22,
2016,
meeting,
the
possibility of her working in a different position was discussed, 46
and
that
Nixon
or
Miksch
"suggested
[she]
might
could
45
Plaintiff's Response, Docket Entry No. 39, p. 25.
46
Id. at 24.
-18-
be
a
teacher's aid. " 47
a
Smith argues that she requested reassignment to
different position,
but this argument
is contradicted by her
deposition testimony that when her six weeks of extended leave
ended, she did not ask SISD for additional leave or for any other
type of accommodation.
In pertinent part Smith testified:
Q.
[D]id you have any contact between when the
six weeks expired, which would have been June, six
weeks that you requested, and the end of July, did
you have any contact with the district?
A.
I don't recall if I had any kind of contact or not.
Q.
Did you call them and say,
"Hey, I'm
requesting some additional leave time"?
A.
No.
Q.
Did you call and say -- or e-mail and ask,
have a position that I can fill"?
A.
No. 48
Q.
Did you -- did you believe that you were
capable of going back to work before
in that
time period between, say, June 1st and July 31st?
A.
Capable,
yes.
If I had had accommodations,
depending on the job.
Not the job that I had, I
know that I couldn't have done that job.
Q.
What accommodations were -- would you have needed?
A.
I would have to arrive late some days.
I would
need frequent restroom breaks.
Some days I would
need off for doctors' appointments because I have
so many doctors' appointments. I would have had to
have quite a few days off. So it would had to have
been a position that allowed for that.
I'm
"Do you
47Id.
48
Smith Deposition, p. 59:3-14, Exhibit
Response, Docket Entry No. 39-1, p. 31.
-19-
A
to
Plaintiff's
Q.
Did -- did you -- in that time period, did you -did you tell anyone at the district that "here's
the accommodations I need, to you have a job that
suits this"?
A.
No,
49
I didn't.
This testimony from Smith's deposition establishes that she
did not ask SISD for a different position, did not inform SISD of
the accommodations that she needed in order to fill a different
position, and did not identify an available position that she would
have been qualified to fill.
An employee seeking reassignment to
a different position as a reasonable accommodation bears the burden
of
showing
qualified
that
for
an
the
available
position,
position
and
that
existed,
she
that
could
she
was
perform
the
essential duties of that position with or without accommodations.
See Griffin v. United Parcel Service, Inc., 661 F.3d 216, 224 (5th
Cir. 2011)
(quoting Jenkins v. Cleco Power, LLC, 487 F.3d 309, 315
(5th Cir. 2007)
of
a
('"An employee who needs an accommodation because
disability
has
the
responsibility
of
informing
her
employer.'")).
3.
Conclusions
The
summary
judgment
evidence
establishes
that
after
February 2, 2016, the date that Smith began FMLA leave for her own
serious illness, she was unable to work at her previous position as
Special Programs Coordinator,
49
and that on April
I d . at 6 0 : 2 3 - 61 : 16 , pp . 3 2 - 3 3 .
-20-
22,
2016,
SISD
officials met with Smith to discuss her future.
2016,
meeting,
Smith requested a
At the April 22,
six-week extension of
unpaid
leave, and SISD officials raised the possibility that she could be
reassigned to a
different position as
a
teacher's
aid.
SISD
continued Smith's unpaid leave not just for the six weeks that
Smith requested,
but until July 31,
2016,
when Smith's contract
expired without an offer of renewal and Smith's employment with
SISD ended.
Smith argues that SISD wrongfully failed to accommo-
date her disability and to engage in the interactive process needed
to identify a reasonable accommodation, but Smith testified that
she never asked SISD to extend her unpaid leave beyond the six
weeks
that
she
requested and received at
the April
22,
2016,
meeting, and that she never applied for any available position at
SISD
that
she
would
have
been
qualified
to
fill
with
the
accommodations she needed.
This evidence establishes that SISD
engaged
process
in
an
interactive
to
identify
a
reasonable
accommodation and granted the only accommodation Smith requested.
Because Smith fails to identify any available position at SISD that
she
would
have
been
qualified
to
perform
with
or
without
a
reasonable accommodation, the court concludes that Smith has failed
to cite evidence from which a reasonable fact-finder could conclude
that she was a qualified individual under the ADA.
from which a
Absent evidence
reasonable fact-finder could conclude that a
job
existed to which she could have been reassigned as a reasonable
accommodation,
Smith
has
failed
-21-
to
raise
a
genuine
issue
of
material
fact
for
trial
on her ADA
claims
for
discriminatory
termination, failure to accommodate, and failure to engage in the
interactive process.
See Burch v. City of Nacogdoches,
615, 622 n.11 (5th Cir. 1999)
174 F.3d
(affirming summary judgment for the
defendant because the plaintiff "never agreed to or even requested
a
reassignment
to a
particular position"
and
"never requested
clearance from his treating physician for any prospective jobs").
Accordingly,
SISD's motion for summary judgment on Smith's ADA
claims will be granted.
B.
SISD is Entitled to Summary Judgment on Smith's Title VII
Claims for Failure to Exhaust Administrative Remedies
Smith has asserted Title VII claims for a sexually hostile
work environment and for retaliation. 50
Smith alleges:
40.
Miksch's ongoing pursuit of Smith before, during
and after their so-called "relationship" when he
controlled the terms of that relationship and
dictated sexual acts and/or physical intimacy in
the workplace violated Title VII.
His conduct
constituted a hostile work environment based on her
gender and was severe and pervasive. See 42 U.S.C.
§ 2000e-2.
41.
Miksch's
conduct
constituted
a
violation of
Title VII.
Plaintiff seeks all allowable damages
for harassment under Title VII .
43.
Smith complained to Assistant Superintendents and
the Business Office Manager about Miksch's affair
with her and his continued pursuit of her.
50
~~
Plaintiff's Amended Complaint, Docket Entry No. 14, pp. 9-10
39-45.
-22-
44.
The termination of her employment occurred soon
after those complaints were made and because of
them - the SISD Board wished to ignore and chose to
disbelieve the egregious conduct of Miksch.
45.
Smith also was denied sick bank leave as a further
act of retaliation.
The denial of her request
simply was nonsensical given she was encouraged to
apply for it and clearly was qualified.
It
evidences SISD's retaliatory intent for her having
complained about Miksch. 51
SISD argues that it is entitled to summary judgment on Smith's
Title VII claims because Smith failed to exhaust her administrative
remedies . 52
Smith
administrative
responds
remedies
and,
that
if
she
not,
timely
exhausted
equitable
tolling
case
plaintiff
her
should
apply. sJ
In
an
employment
discrimination
the
must
exhaust all administrative remedies before pursuing her claims in
federal court.
(5th Cir.
2002)
Taylor v. Books A Million, Inc., 296 F. 3d 376, 379
(citing Dao v. Auchan Hypermarket,
788-89 (5th Cir. 1996)).
96 F.3d 787,
A plaintiff exhausts her administrative
remedies when she files a timely charge of discrimination with the
EEOC.
Dao, 96 F.3d at 788-89 (noting that although filing a claim
with the EEOC is not a
jurisdictional prerequisite,
precondition to filing suit in district court'"
it
"'is a
(quoting Cruce v.
Brazosport Independent School District, 703 F.2d 862, 863 (5th Cir.
~~
51
Id.
52
Defendant's MSJ, Docket Entry No. 35, pp. 11-12
53
Plaintiff's Response, Docket Entry No. 39, pp. 17-20.
40-41, 43-45.
-23-
~~
29-35.
1983))).
charge
As a general rule,
with
employment
the
EEOC
practice
discrimination victims must file a
within
180
days
42
U.S.C.
occurred.
of
when
the
unlawful
2000e-5 (e) (1).
§
In
deferral states, such as Texas, an exception to this general rule
applies and an individual must file a charge within 300 days of the
allegedly discriminatory act.
U.S.C.
§§
626(d) and 633(b)
54
See 42 U.S. C.
§
2000e-5 (e) (1),
29
The limitations period for filing
a charge of discrimination with the EEOC starts to run from the
date the discriminatory act occurs or the date that the plaintiff
knows
or
reasonably
should
know
Delaware State College v. Ricks,
of
the
101 S.
Ct.
Merrill v. Southern Methodist University,
Cir. 1986).
to
filing
498,
503-04
806 F.2d 600,
act.
(1980);
605
(5th
A failure to exhaust administrative remedies is a bar
a
lawsuit.
See
Authority of Harris County,
2016)
discriminatory
Hernandez
v.
Metropolitan
673 F. App'x 414,
(citing Price v. Choctaw Glove
&
416 n.1
Transit
(5th Cir.
Safety Co., 459 F.3d 595,
598 (5th Cir. 2006)).
Smith filed her first EEOC charge alleging only disability
discrimination on October 14, 2016. 55
Smith filed her amended EEOC
alleging disability and sex discrimination,
54
Neither party to this suit disputes
exception applies to the instant case.
55
and retaliation on
that
this
300-day
Exhibi t 2 to Plaintiff's Complaint, Docket Entry No. 1-3.
See also Defendant's Appendix, p. 97, Docket Entry No. 35-1, p.
107.
-24-
November 27, 2016. 56
Citing Manning v. Chevron Chemical Co., LLC,
332 F.3d 874, 878 (5th Cir. 2003), SISD argues that because Smith's
"amended charge
theories
it
alleged different
does
not
relate
facts,
back
to
and raised new
the
original
purposes of tolling the required time period." 57
legal
charge
for
SISD argues that
because Smith's claims of sex discrimination and retaliation under
Title VII relate to events that occurred more than 300 days before
November 27, 2016, they fail as a matter of law. 58
Generally,
amendments that raise a new legal theory do not
"relate back" to an original charge of discrimination.
EEOC v. Mississippi College, 626 F.2d 477, 483-84
Id. (citing
(5th Cir. 1980)
(observing that "[b]ecause [the claimant's] allegations of racial
discrimination do not relate to or grow out of the allegations of
sex discrimination advanced in the original charge, that aspect of
the amended charge does not relate back to the time of filing of
[the]
original
justification.
discrimination
charge") ) .
One of
charge
This
the
is
to
rule
has
an
important
central purposes of
put
employers
on
the
employment
notice
existence and nature of the charges against them."
Id.
EEOC v. Shell Oil Co., 104 S. Ct. 1621, 1635 (1984))
policy
of
"the
(quoting
Therefore,
56
Exhibit 3 to Plaintiff's Complaint, Docket Entry No. 1-4.
See also Defendant's Appendix, p. 84, Docket Entry No. 35-1, p. 92.
57
Defendant's MSJ, Docket Entry No. 35, p. 12
58
Id.
~~
33-35.
-25-
~
32.
employees must inform their employers from the outset about their
claims of discrimination.
Id. at 878-79.
Smith argues that her "Intake Questionnaire is sufficient to
constitute a charge of discrimination." 59
Ltd., 156 F. Supp. 3d 840
Citing Stone v. Academy,
(S.D. Tex. 2016), Smith argues that an
Intake Questionnaire with more factual details than a later-filed
charge
can constitute a
deadline. 60
charge
timely filed within the
filing
Smith argues that treating her intake questionnaire as
a charge would be consistent with the Supreme Court's directive in
Federal Express Corp. v. Holowecki, 128 S. Ct. 1147, 1160 (2008),
that
"'documents filed by an employee with the EEOC should be
construed,
to
the
interpretation,
extent
consistent with permissible
to protect the
employee's rights
rules
of
and statutory
remedies. '" 61
When considering whether a plaintiff has adequately exhausted
administrative
determined
pro
se
that
remedies,
courts
unverified
complainants
may
in
intake
the
Fifth
questionnaires
constitute
a
charge
for
satisfying the time limitation for filing a charge.
Circuit
have
submitted
by
purposes
of
See Stevenson
v. LaSalle Corrections Transportation, LLC, No. 3:13-CV-2105, 2015
WL 11120728,
*2
(N.D. Tex. April 21,
2015)
(determining that an
unverified questionnaire constituted a charge); Wolf v. East Texas
59
Plaintiff's Response, Docket Entry No. 39, p. 17.
60
Id. at 19.
61
Id. (citing Stone, 156 F. Supp. 3d at 845 (quoting Holowecki,
128 S. Ct. at 1160).
-26-
Medical
Center,
515
F.
Supp.
2d
682,
688-89
(E.D.
Tex.
2007)
(construing questionnaire as timely charge where plaintiff later
filed a
charge of
allegations");
unverified
discrimination
Stone,
intake
156
F.
"concerning
Supp.
3d at
843-45
same
factual
(holding EEOC
constituted
questionnaire
discrimination where plaintiff) .
the
charge
of
In Stone the court observed that
[t]he Fifth Circuit has recognized that an intake
questionnaire that informs the EEOC of the identity of
the parties and describes the alleged discriminatory
conduct in enough detail to enable the EEOC to issue an
official notice of charge to the respondent is sufficient
to set the administrative machinery in motion.
Stone,
156
F.
Supp.
3d
at
843
(citing
Conner
v.
Louisiana
Department of Health & Hospitals, 247 F. App'x 480, 481 (5th Cir.
2007))
(quoting Price v. Southwestern Bell Telephone Co., 687 F.2d
74, 7 8 (5th Cir. 1982)
In
pertinent
part
(internal quotations omitted)) .
Smith made
the
following
statement
in
response to question 5 on her Intake Questionnaire asking "What
happened to you that you believe was discriminatory?
Include the
date(s) of harm, the action(s), and the name(s) and title(s) of the
person(s) who you believe discriminated against you.":
B.
Date: Sept. 2003-Sept. 2011
Action: Relationship with Superintendent.
I have
notes he left on my desk that my boss and co-worker
read without my knowledge.
Unwanted pursuing of
relationship.
Name and Title of Person (s)
Miksch, Superintendent. 62
62
Intake Questionnaire,
Docket Entry No. 1-2, p. 3.
Responsible:
Randy
Exhibit 1 to Plaintiff's Complaint,
-27-
While this information on Smith's Intake Questionnaire identified
Miksch as someone who had discriminated against her, neither her
statement that the alleged discrimination occurred from September
2003 to September 2011,
2016,
i.e.,
over five years before October 13,
the date she completed the Intake Questionnaire,
nor her
description of the allegedly discriminatory conduct provided any
information about acts
that occurred within the 300-day charge
filing period that would have enabled the EEOC to issue an official
notice
of
charge
to
machinery in motion.
the
respondent
to
set
the
administrative
See Stone, 156 F. Supp. 3d at 843.
Alternatively, Smith argues that equitable tolling should be
applied by this court because "Smith was misled by the EEOC about
her sexual harassment charge." 63
In support of this argument Smith
cites her own declaration in which she states:
I went to the Houston office of the [EEOC] on October 13,
2016. I think I took the intake questionnaire home with
me and filled it out.
I had to go back on October 14.
I met with a female employee, Marina Guerra. She looked
at my intake questionnaire. I even showed her the notes
and letters Randy sent me.
She read them, but she told
me that she did not think that I should claim sexual
harassment.
I do not remember her exact words, but it
was essentially because of the timing -- the deadline to
file a charge. 64
Citing Manning,
332
F.3d at
880,
Smith argues
that
equitable
tolling should apply because the EEOC misled her not to mark the
63
Plaintiff's Response, Docket Entry No. 39, p. 17.
Smith Declaration ~ 10, Exhibit D to Plaintiff's Response,
Docket Entry No. 39-4, p. 4.
64
-28-
box for harassment because the affair with Miksch ended in 2011.
Smith asserts that she had no idea she should mark "continuing
action" or that she should push back on the EEOC's advice because
Miksch pursued her for years after the affair ended. 65
In Manning the Fifth Circuit stated that "[w]e apply equitable
tolling when an employee seeks information from the EEOC, and the
organization gives the individual incorrect information that leads
the
individual
to
file
an untimely charge."
332
F.3d at
881
(citing Ramirez v. City of San Antonio, 312 F.3d 178, 184 (5th Cir.
2002)).
Smith states that the EEOC employee did not think that she
should claim sexual harassment because of the deadline for filing
a charge.
Since, however, Smith's intake questionnaire is dated
October 13, 2016, while the dates she stated Miksch discriminated
against her were from September 2003 to September 2011, the EEOC
did not
give
her
incorrect
information because
the
dates
she
alleged the discrimination occurred were well before the 300-day
period for filing an EEOC charge.
Because Smith does not allege
that the EEOC gave her any incorrect information with respect to
the proper time for filing her charge,
tolling does not apply in this case.
this basis for equitable
Smith's Title VII discrimi-
nation claims are therefore time-barred for
failure
to exhaust
administrative remedies.
65
Plaintiff's Response, Docket Entry No. 39, p. 20.
-29-
C.
SISD is Entitled to Summary Judgment on Smith's FMLA Claims
for Retaliatory Termination and Denial of Sick Bank Leave
Smith has asserted FMLA claims for retaliatory termination and
retaliatory denial of sick bank leave. 66
Smith alleges:
48.
Smith was eligible for and took a qualifying leave
of absence under the FMLA.
49.
SISD denied her restoration to the same
equivalent position as prescribed in the FMLA.
50.
Smith's termination upon her return from FMLA leave
was in retaliation for her having taken this leave.
29 U.S.C. § 2615 (a) (2).
There is close temporal
proximity to Smith's FMLA leave and the decision to
terminate her employment.
Further, she was denied
sick bank leave in retaliation for her having taken
FMLA leave. 67
SISD
argues
that
it
is
entitled
to
summary
or
judgment
on
plaintiff's FMLA retaliatory termination claim because Smith cannot
establish a prima facie case under the FMLA, and because SISD had
a valid non-retaliatory reason for terminating Smith's employment,
i.e., Smith failed to comply with SISD's policy requiring her to
provide a physician's statement indicating that she was fit for the
resumption of regular duties following her FMLA leave. 68
Although
SISD seeks summary judgment on all of Smith's claims, SISD had not
made any different or additional argument in support of its motion
for summary judgment on Smith's FMLA claim for denial of sick bank
66
Plaintiff's Amended Complaint, Docket Entry No. 14, p. 10.
Id. at 11 ~~ 48-50.
Entry No. 39, pp. 28-29.
67
68
See also Plaintiff's Response, Docket
Defendant's MSJ, Docket Entry No. 35, pp. 16-17
-30-
~~
46-52.
leave.
Citing Tapia v. Michaels Stores, Inc., 553 F. Supp. 2d 708,
715 (W.D. Tex. 2008), Smith responds that "[t]he summary judgment
record contains sufficient evidence of pretext and/or that Smith's
absence
was
a
motivating
factor
in Defendant's
denial
of
her
request for sick leave, a leave of absence, and the termination of
her employment to warrant denial of summary judgment. " 69
1.
Applicable Law
The
FMLA
allows
eligible
employees
working
for
covered
employers to take temporary leave for medical reasons without risk
of losing their employment.
contains
a
See 29 U.S.C.
provision protecting
employees
discrimination for exercising FMLA rights.
§
2601(b) . 70
from
It also
retaliation or
Mauder v. Metropolitan
Transit Authority of Harris County, Texas, 446 F.3d 574, 580 (5th
Cir.
2006).
"The
Fifth Circuit applies
the McDonnell Douglas
framework to analyze retaliation claims under the FMLA, noting that
'there is no significant difference between such claims under the
FMLA and similar claims under other anti-discrimination laws.'"
Hunt v. Rapides Healthcare System, LLC, 277 F.3d 757, 768 (5th Cir.
2001) .
69
Therefore,
in order to establish a prima facie case of
Plaintiff's Response, Docket Entry No. 39, p. 29.
70
The FMLA applies to private-sector employers with fifty or
more employees.
29 U.S.C. § 2611(4) (A) (i).
An employee who has
worked for a covered employer for at least 1250 hours during the
preceding twelve months is eligible for FMLA leave.
29 U.S. C.
§ 2611 (2) (A).
SISD does not dispute either that it is a covered
employer or that Smith was eligible for FMLA leave.
-31-
retaliation Smith must show that:
FMLA;
(2)
(1) she was protected under the
she suffered an adverse employment action; and (3)
the
adverse decision was made because she took leave to which she was
entitled under the FMLA.
Id.
Once she establishes a prima facie
case the burden shifts to SISD to articulate a
retaliatory reason for its employment actions.
legitimate nonId.
Thereafter,
the burden shifts back to Smith to "adduce evidence that would
permit a reasonable trier
[of]
fact to find that the proffered
reason is a pretext for retaliation."
Inc., 238 F. 3d 674,
684
Medina v. Ramsey Steel Co.,
(5th Cir. 2001).
This requires Smith to
demonstrate that the adverse employment actions would not have
occurred "but for" the protected activity.
2.
Id.
Application of the Law to the Undisputed Facts
Smith has satisfied the first two elements of her prima facie
case for her FMLA retaliation claims:
She was protected under the
FMLA and suffered adverse employment actions, i.e., termination (or
failure
to
renew
her
employment
contract)
and
denial
of
her
At issue is whether Smith has
application for sick bank leave.
cited evidence capable of establishing that SISD made the adverse
employment decisions because she sought protection under the FMLA.
This
causal
link
element
is
"established
when
the
demonstrates that 'the employer's decision[s were]
based in
part on knowledge of the employee's protected activity.'"
238
F.3d at
684.
SISD argues
that
-32-
Smith
"fails
evidence
to
Medina,
show any
evidence that her termination was due to her taking FMLA leave.
On
the contrary, Smith acknowledges that her leave expired on April 8,
2016, and that she could not return to work upon the expiration of
her leave. " 71
In response Smith recites the elements of a prima facie case,
but fails to cite any evidence capable of establishing that SISD
made the adverse employment decisions about which she complains
because she took FMLA leave. 72
"[t] he
Instead, Smith merely asserts that
summary judgment record contains
sufficient evidence of
pretext and/or that Smith's absence was a motivating factor in
Defendant's
denial
of
her
request
for
sick
leave,
a
leave
of
absence, and the termination of her employment to warrant denial of
summary judgment." 73
To avoid summary judgment Smith had to present
evidence from which a reasonable fact-finder could conclude that
SISD would not have denied her application for sick bank leave and
would not have terminated her employment had she not exercised her
FMLA rights.
The summary judgment evidence shows that Smith took FMLA leave
due to her own serious illness -- Multiple Sclerosis -- and that
upon expiration of her FMLA leave Smith could not perform the
~ 48.
71
Defendant's MSJ, Docket Entry No. 35, p. 16
72
Plaintiff's Response, Docket Entry No. 39, p. 28.
73
Id. at 29.
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essential functions of her position and sought as a reasonable
accommodation under the ADA a six-week extension of unpaid leave.
Smith does not allege that her condition improved or changed during
the time she was on FMLA leave, or at anytime thereafter.
contrary,
Smith does not dispute and in fact
To the
testified at her
deposition that she was unable to provide SISD a doctor's statement
of
fitness
for
work and
that
she
applied
for
Social
Security
disability benefits asserting that she was unable to work.
The
evidence adduced in this case is not sufficient to defeat SISD's
motion for summary judgment on Smith's FMLA retaliation claims
because no reasonable fact-finder could conclude from this evidence
that
SISD
denied
Smith's
application
for
sick
bank
leave
or
terminated her employment in retaliation for having exercised her
FMLA
rights.
Accordingly,
the
court
concludes
that
SISD
is
entitled to summary judgment on Smith's FMLA claims for retaliatory
termination and denial of sick bank leave.
IV.
Conclusions and Order
For the reasons stated in § III.A, above, the court concludes
that SISD is entitled to summary judgment on Smith's claims for
violation of the ADA; for the reasons stated in§ III.B, above, the
court
concludes
that
SISD
is
entitled
to
Smith's claims for violation of Title VII;
summary
judgment
on
and for the reasons
stated in§ III.C, above, the court concludes that SISD is entitled
-34-
to summary judgment on Smith's claims for violation of the FMLA.
Accordingly,
Defendant Sweeny ISD's Motion for Summary Judgment
(Docket Entry No. 35) is GRANTED.
SIGNED at Houston, Texas, on this 29th day of October, 2018.
LAKE
UNITED STATES DISTRICT JUDGE
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