Charles v. University Of Texas Medical Branch

Filing 45

MEMORANDUM AND RECOMMENDATIONS re 31 MOTION for Summary Judgment . Objections to M&R due by 8/16/2022(Signed by Magistrate Judge Andrew M Edison) Parties notified.(rcastro, 4)

Case 3:20-cv-00341 Document 45 Filed on 08/02/22 in TXSD Page 1 of 17
United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION

August 02, 2022
Nathan Ochsner, Clerk

§
§
§
Plaintiff.
§
§ CIVIL ACTION NO. 3:20-cv-00341
VS.
§
UNIVERSITY OF TEXAS MEDICAL §
BRANCH AT GALVESTON,
§
§
§
Defendant.
MICHELLE CHARLES,

MEMORANDUM AND RECOMMENDATION
Pending before me is a Motion for Summary Judgment filed by Defendant
University of Texas Medical Branch at Galveston (“UTMB”). See Dkt. 31. Having
reviewed the briefing, the record, and the applicable law, I recommend that the
motion be GRANTED.
BACKGROUND
Plaintiff Michelle Charles (“Charles”) brings this race and disability
discrimination, hostile work environment, and retaliation case pursuant to Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and the
Rehabilitation Act of 1973, 29 U.S.C. § 794. 1 The undisputed facts and timeline of
relevant events are captured below.
x September 19, 2016: UTMB—acting through the Emergency
Department Nurse Manager, Pamela Cruz (“Cruz”)—hires
Charles as a Health Unit Coordinator (“HUC”). HUC duties
included, among other things, maintaining the whiteboards in
patients’ rooms and securing and logging patient belongings.

On July 12, 2021, United States District Judge Jeffrey Brown dismissed Charles’s claims
under 42 U.S.C. § 1981, 42 U.S.C. § 1983, and the Family Medical Leave Act (“FMLA”) for
lack of subject matter jurisdiction, in addition to dismissing her claims for punitive
damages. See Dkt. 20.
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x January 12, 2018: Cruz issues Charles a “coaching” regarding
Charles’s failure to update whiteboards.
x June 6, 2018: Cruz issues Charles a verbal warning for failing
to update whiteboards on May 29, 2018.
x August 29, 2018: Cruz issues Charles a written warning for
failing to properly secure and inventory a patient’s belongings.
x September 12, 2018: Charles submits a grievance to Human
Resources complaining that the Emergency Department is
“short staffed” and she was “being singled out for something
that affects us all.” Dkt. 32-4 at 4. The letter does not mention
Charles’s race or disability.
x January 11, 2019: Cruz issues Charles another written
warning for failing to properly secure patient belongings.
x January 21, 2019: Charles files another grievance
complaining that Cruz “has a personal vendetta” and that Cruz
does not write up other employees for the same behavior for
which she disciplines Charles. Id. at 6.
x February 2019: Cruz transfers to another UTMB location and
is replaced by Chad Connally (“Connally”) as Nurse Manager.
x April 13, 2019: Charles releases belongings to the wrong
patient.
x April 23, 2019: Connally issues a Notice of Intent to
Terminate.
x April 24, 2019: Charles responds in writing to the Notice of
Intent to Terminate and requests a disability accommodation.
Upon receiving Charles’s request for a disability
accommodation, UTMB’s Institutional Americans with
Disabilities Act (“ADA”) Officer, Lela Lockett-Ware (“LockettWare”), emails Charles to begin the interactive process under
the ADA and provides her with the necessary forms.
x April 25, 2019: Connally places Charles on administrative
leave.
x May 7, 2019: Charles emails Lockett-Ware disclaiming the
need for accommodation and requests access to the Employee
Assistance Program due to stress in the workplace and a hostile
work environment.
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x May 8, 2019: Charles returns the completed ADA forms and
designates Dr. Hanan Hussein (“Dr. Hussein”) as the physician
with whom UTMB could confer regarding Charles’s requested
accommodation.
x May 9, 2019: Lockett-Ware speaks with Charles regarding her
accommodation request and extends her administrative leave
by 15 days.
x June 7, 2019: Dr. Hussein recommends two accommodations
for Charles: (1) lift no more than 15-20 pounds, and (2) sit for
no more than one hour without getting up and walking for at
least five minutes. In the interim, UTMB had further extended
Charles’s administrative leave. Lockett-Ware confers with
Connally regarding whether the Emergency Department could
provide such accommodations. Connally explains that lifting
more than 20 pounds is not an essential job function of HUCs,
and HUCs already walk around at least five minutes of every
hour.
x June 11, 2019: UTMB determines that no accommodation is
necessary and issues a letter to that effect. Lockett-Ware
conveys this information to Charles by phone, and Charles asks
Lockett-Ware whether UTMB had considered any
recommendations from her neurologist. Lockett-Ware states
that UTMB has not received authorization to speak with anyone
other than Dr. Hussein. Later that day, Lockett-Ware receives a
fax from Dr. Mohamed Khalil (“Dr. Khalil”) stating that Charles
is unable to return to work until further testing is completed
and a treatment plan is instituted. Lockett-Ware forwards Dr.
Khalil’s letter to Leave Management, the office that handles
Family and Medical Leave issues.
x June 13, 2019: UTMB approves Charles’s request for a leave
of absence under the FMLA.
x July 12, 2019: Charles’s FMLA leave expires.
x July 18, 2019: UTMB terminates Charles’s employment.
After the discovery period concluded, UTMB filed a Motion for Summary
Judgment, seeking to have all claims brought by Charles thrown out. See Dkt. 31.
Charles filed a response to the Motion for Summary Judgment, and UTMB

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followed up with a reply in support of its Motion for Summary Judgment. See Dkts.
37 and 38. I also permitted Charles to file a Sur-Reply. See Dkt. 41.
LEGAL 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.” FED. R. CIV. P. 56(a). “A fact is material if it could affect the
outcome of the lawsuit, and a dispute about a material fact is genuine if the
evidence is such that a reasonable jury could return a verdict for the non-moving
party.” McInnis v. Alamo Cmty. Coll. Dist., 207 F.3d 276, 279 (5th Cir. 2000). “In
determining whether there is a dispute regarding a material fact, we consider all
the evidence in the record but do not make credibility determinations or weigh the
evidence.” MAN Roland, Inc. v. Kreitz Motor Express, Inc., 438 F.3d 476, 478 (5th
Cir. 2006). “The evidence of the non-movant is to be believed, and all justifiable
inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986).
The “party seeking summary judgment always bears the initial responsibility
of informing the district court of the basis for its motion, and identifying those
portions of ‘the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986) (quoting FED. R. CIV. P. 56(c)). “If the moving party fails to meet this
initial burden, the motion must be denied, regardless of the nonmovant’s
response.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). If the
movant carries its initial burden, the burden shifts to the nonmovant to present
competent summary judgment evidence showing the existence of a genuine
dispute of material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586–87 (1986). Upon the shifting burden, “[u]nsubstantiated assertions,
improbable inferences, and unsupported speculation are not sufficient to defeat a

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motion for summary judgment.” Brown v. City of Houston, 337 F.3d 539, 541 (5th
Cir. 2003).
PRELIMINARY ISSUES
Before determining whether summary judgment is proper on some or all of
Charles’s claims, there are a couple of preliminary procedural and evidentiary
issues I need to address
First, UTMB asks me to treat its Motion for Summary Judgment as
unopposed, strike Charles’s response as untimely, or both. This request is made
because Charles filed her response to the Motion for Summary Judgment a
whopping two (yes, two) business days late “due to a technical issue with the
electronic filing system and the reformatting of exhibits to be compliant with the
filing system.” Dkt. 41 at 2–3. Although this two-day delay surely has not
prejudiced UTMB in the least, UTMB wants me to impose what amounts to death
penalty sanctions on Charles for the late filing. I am not going to do so. The words
of one my colleagues on the federal bench, Judge Jonathan Goodman, are
particularly appropriate here: “defense counsel may want to brush up on the
concepts o[f] karma, goodwill, grace, compassion, equity, charity, flexibility,
respect, spirituality, selflessness, kindness, public spirit, social conscience and
empathy.” Debra Cassens Weiss, Judge suggests lawyer who opposed extension
may want to brush up on karma concepts, ABA JOURNAL (Mar. 27, 2020),
available at https://www.abajournal.com/news/article/judge-suggests-lawyerwho-opposed-extension-may-want-to-brush-up-on-concept-of-karma.
Second, some objections have been lodged both by Charles and UTMB to the
summary judgment evidence presented by the other side. To start, Charles objects
to two paragraphs contained in the Connally declaration submitted by UTMB,
arguing that such testimony constitutes “hearsay and hearsay within hearsay.” Dkt.
37 at 24. After carefully reviewing the portions of the Connally declaration in
dispute, I overrule Charles’s objections. The declaration simply does not contain
hearsay. The only out-of-court statement offered for the truth of the matter in the
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declaration is a statement made by Charles. That statement is not hearsay since it
is an admission by a party opponent. See FED. R. EVID. 801(d)(2)(A).
Turning to UTMB’s objections to Charles’s summary judgment evidence,
UTMB argues that the declarations of Angela White (Exhibit 28) and George
Beasley (Exhibit 29) should be struck because these witnesses were untimely
designated. UTMB also asks that I strike a number of other exhibits (Exhibits 2-5,
27, 30, and 33) because they are unauthenticated. I overrule UTMB’s objections as
moot because “this evidence does not affect the disposition of the summary
judgment motion.” Lilly v. SSC Houston Sw. Operating Co., No. 4:20-CV-03478,
2022 WL 35809, at *3 n.2 (S.D. Tex. Jan. 4, 2022). See also Jones v. United Parcel
Serv., Inc., No. 3:06-CV-1535-L, 2008 WL 2627675, at *6 (N.D. Tex. June 30,
2008) (denying objections to summary judgment evidence as moot because the
evidence was “not central to the court’s conclusions, and sustaining the parties’
objections would not change the result”).
ANALYSIS
Now it is time to consider whether summary judgment is appropriate. I will
address, one-by-one, the live claims presented in the Amended Complaint.
A.

TITLE VII DISCRIMINATION
First, Charles contends that UTMB discriminated against her on account of

her race in violation of Title VII. See 42 U.S.C. § 2000e-2(a) (prohibiting
discrimination “against any individual with respect to [her] compensation, terms,
conditions, or privileges of employment, because of such individual’s race, color,
religion, sex, or national origin”).
Unlawful discrimination may be established through either direct or
circumstantial evidence. See Jackson v. Cal-Western Packaging Corp., 602 F.3d
374, 377 (5th Cir. 2010). Because Charles relies on circumstantial evidence, I must
utilize the familiar burden-shifting test set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973) to analyze her discrimination claims. See EEOC v. LHC
Grp., Inc., 773 F.3d 688, 694 (5th Cir. 2014). Under this framework, a plaintiff
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must first establish a prima facie case of discrimination. See id. If the plaintiff
establishes a prima facie case, the burden shifts to the employer to articulate a
legitimate, non-discriminatory reason for its employment decision. See Mayberry
v. Vought Aircraft Co., 55 F.3d 1086, 1089 (5th Cir. 1995). The defendant’s burden
is low—it is merely one of production, not persuasion. See Daigle v. Liberty Life
Ins. Co., 70 F.3d 394, 396 (5th Cir. 1995) (“If the employer produces any evidence
‘which, taken as true, would permit the conclusion that there was a
nondiscriminatory reason for the adverse action,’ then the employer has satisfied
its burden of production.” (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
509 (1993)). If the employer articulates a legitimate, non-discriminatory reason
for its employment decision, the prima facie case is dissolved, and the burden shifts
back to the plaintiff to establish that the reason proffered by the employer is merely
a pretext for discrimination. See McDonnell Douglas, 411 U.S. at 804.
1.

Prima Facie Case

UTMB contends that Charles has failed to make out a prima facie case of
discrimination under Title VII. To establish a prima facie case of discrimination, a
plaintiff must show that she “(1) is a member of a protected class; (2) was qualified
for her position; (3) was subject to an adverse employment action; and (4) was
replaced by someone outside the protected class, or, in the case of disparate
treatment, shows that others similarly situated were treated more favorably.”
Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 513 (5th Cir. 2001)
(cleaned up). The parties do not dispute that Charles satisfies the first three
elements. Thus, whether summary judgment is proper turns on the fourth element.
However, UTMB fails to acknowledge disparate treatment as a means of
establishing the fourth element. Instead, UTMB argues for summary judgment
based entirely on the fact that Charles was replaced by a Black woman—i.e.,
someone who was not outside Charles’s protected class.
I recognize that the case UTMB chose to cite for its preferred elements of a
Title VII discrimination claim does not discuss disparate treatment. See
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Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999)
(discussing only replacement by someone outside the protected class). However,
the controlling authority in the Fifth Circuit states: “the single fact that a plaintiff
is replaced by someone within the protected class does not negate the possibility
that the discharge was motivated by discriminatory reasons.” Nieto v. L&H
Packing Co., 108 F.3d 621, 624 n.7 (5th Cir. 1997) (cleaned up). Because UTMB
fails to address disparate treatment, or even make arguments that would relate to
it, I presume that Charles can establish a prima facie case of discrimination under
Title VII. Accordingly, UTMB is not entitled to summary judgment based on
Charles’s alleged failure to make out a prima facie case of discrimination under
Title VII.
2.

Legitimate Non-discriminatory Reason

When a plaintiff establishes a prima facie discrimination case, the burden
then shifts to the employer to articulate a legitimate, non-discriminatory reason
for the adverse employment action. See Nall v. BNSF Ry. Co., 917 F.3d 335, 341
(5th Cir. 2019). “If the employer produces any evidence, which, taken as true,
would permit the conclusion that there was a nondiscriminatory reason for the
adverse action, then the employer has satisfied its burden of production.” Daigle,
70 F.3d at 396 (quotation omitted).
UTMB has put forth sufficient evidence that would allow a reasonable juror
to conclude that it terminated Charles for a legitimate, non-discriminatory reason.
Specifically, UTMB contends that Charles’s “job performance was poor[,] . . . . [s]he
repeatedly failed to follow UTMB’s written policies regarding her job
requirements, and failed to follow instructions from her managers to complete her
job duties.” Dkt. 31 at 20. These are all legitimate, non-discriminatory reasons for
termination. See LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 390 (5th
Cir. 2007) (failure to follow a directive from an employer is a legitimate, nonretaliatory reason for termination); Rachid v. Jack in the Box, Inc., 376 F.3d 305,
313 (5th Cir. 2004) (holding that “violating a non-discriminatory company policy
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is adequate grounds for termination”); Little v. Republic Refin. Co., 924 F.2d 93,
96 (5th Cir. 1991) (holding that plaintiff’s poor job performance was a legitimate,
non-discriminatory reason for termination).
Because UTMB has satisfied its burden of production, the burden shifts back
to Charles to establish a genuine issue of material fact by showing that UTMB’s
proffered reasons for her termination are pretextual.
3.

Pretext

To avoid summary judgment, “[Charles] must present substantial evidence
that [UTMB’s] legitimate, nondiscriminatory reason[s] for termination [are]
pretextual.” Delaval v. PTech Drilling Tubulars, L.L.C., 824 F.3d 476, 480 (5th
Cir. 2016) (quotation omitted). This means “[Charles] must substantiate h[er]
claim of pretext through evidence demonstrating that discrimination lay at the
heart of [UTMB’s] decision.” Price v. Fed. Express Corp., 283 F.3d 715, 720 (5th
Cir. 2002). See also Goudeau v. Nat’l Oilwell Varco, L.P., 793 F.3d 470, 478 (5th
Cir. 2015) (“At the end of the day, the pretext inquiry asks whether there is
sufficient evidence demonstrating the falsity of the employer’s explanation, taken
together with the prima facie case, to allow the jury to find that discrimination was
the but-for cause of the termination.” (quotation omitted)).
“In pretext cases, it is not enough that the [employer] was wrong about the
underlying facts that motivated the adverse employment action. The only question
is whether the employer had a good-faith belief that the facts that motivated the
adverse action were true.” Lucas v. T-Mobile USA, Inc., 217 F. Supp. 3d 951, 957
(S.D. Tex. 2016). “Pretext is established either through evidence of disparate
treatment or by showing that the employer’s proffered explanation is false or
unworthy of credence.” Delaval, 824 F.3d at 480 (quotations omitted). “In
conducting a pretext analysis, the court does not engage in second-guessing of an
employer’s business decisions.” Roberson-King v. La. Workforce Comm’n, 904
F.3d 377, 381 (5th Cir. 2018) (quotation omitted).

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In her response to UTMB’s Motion for Summary Judgment, Charles states
in conclusory fashion that she was “treated less favorably than other similarly
situated employees who . . . were non-Black.” Dkt. 37 at 15. This statement, taken
alone, is far from sufficient to meet her burden on pretext. Indeed, the Fifth Circuit
has consistently held that an employee’s subjective belief that she has suffered
discrimination is insufficient to establish pretext. See EEOC v. La. Off. of Cmty.
Servs., 47 F.3d 1438, 1448 (5th Cir. 1995) (“[a] subjective belief of discrimination,
however genuine, cannot be the basis of judicial relief”). Notably absent from
Charles’s summary judgment response is any evidence supporting her claim that
she was treated differently than those employees who were non-Black. The best
Charles can do to support her pretext argument is cite to an exhibit (Exhibit 48)
that is nowhere to be found in the summary judgment record. See Dkt. 37 at 15
n.29. Charles also fails to provide any explanation as to when and how she was
treated differently than those employees who were non-Black. Charles’s contention
that her termination was racially motivated is belied by the fact that the person
UTMB hired to replace her is, like Charles, a Black woman. At its core, Charles
claim is that UTMB’s decision to terminate her employment was unreasonable. But
that does not come anywhere close to creating a factual dispute on the pretext
issue. It is well-settled that employers are “entitled to be unreasonable” in
terminating their employees “so long as [they] do[ ] not act with discriminatory
animus.” Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 899 (5th Cir. 2002).
See also Owens v. Circassia Pharms., Inc., 33 F.4th 814, 826 (5th Cir. 2022)
(“[T]he inquiry is not whether [UTMB] made a wise or even correct decision to
terminate [Charles] . . . . Instead, the ultimate determination, in every case, is
whether, viewing all of the evidence in a light most favorable to the plaintiff, a
reasonable factfinder could infer discrimination.” (cleaned up)).
Because

Charles

cannot

demonstrate

that

the

legitimate,

non-

discriminatory reasons UTMB offered for terminating her were pretextual, UTMB
is entitled to summary judgment on Charles’s Title VII discrimination claim.
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B.

HOSTILE WORK ENVIRONMENT
Charles also asserts a hostile work environment claim. The five elements of

a hostile work environment claim are: (1) plaintiff is a member of a protected class;
(2) plaintiff was subject to unwelcome harassment; (3) the harassment was based
on plaintiff’s protected class status; (4) the harassment was severe or pervasive
enough to alter the condition of plaintiff’s employment and create an abusive
working environment; and (5) the employer knew or should have known of the
harassment and failed to take action. See Abbt v. City of Houston, 28 F.4th 601,
607 (5th Cir. 2022). After correctly identifying all the elements of a hostile work
environment claim, UTMB states that Charles “cannot show she was subjected to
unwelcome harassment, that any such harassment was based on her race, that any
such harassment affected a term, condition, or privilege of her employment, or that
UTMB knew or should have known of any such harassment and failed to take
prompt remedial action.” Dkt. 31 at 22. UTMB goes on to highlight how Charles’s
own testimony negates that any perceived harassment was based on Charles’s
protected class status. Charles does not address these assertions in her summary
judgment response, nor does she point to any other evidence that might tell a
different story. Because Charles has failed to provide any evidence supporting
elements 2-5 of a hostile work environment claim, I recommend that UTMB’s
motion for summary judgment be granted on this claim.
C.

TITLE VII RETALIATION
Charles also claims that she was retaliated against in violation of Title VII.

Retaliation claims under Title VII are analyzed under the McDonnell Douglas
burden-shifting framework. See Wheat v. Fla. Par. Juv. Just. Comm’n, 811 F.3d
702, 705 (5th Cir. 2016). To set out a prima facie case of retaliation under Title VII,
Charles must show that (1) she engaged in an activity protected by Title VII; (2)
she suffered an adverse employment action; and (3) there is a causal link between
elements (1) and (2). See Abbt, 28 F.4th at 610. It is the third element, the causation
piece, that dooms Charles’s prima facie case on the Title VII retaliation claim.
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On April 23, 2019, UTMB sent Charles a Notice of Intent to Terminate,
putting her on notice that UTMB “intend[ed] to terminate [her] employment with
UTMB due to [her] continued failure to maintain satisfactory work performance
standards.” Dkt. 32-2 at 5. UTMB asserts that Charles “never reported or alleged
any unlawful practices by UTMB until” after UTMB sent out the Notice of Intent
to Terminate. Dkt. 31 at 26. Charles does not dispute this. Her April 24, 2019
response to UTMB’s Notice of Intent to Terminate thus represented the first time
she complained of discrimination based on race and sought an accommodation for
an alleged disability. 2 But even assuming that Charles’s April 24, 2019 response
somehow constitutes a protected activity under Title VII, “[a]n adverse action
contemplated by an employer before learning of the protected activity ‘is no
evidence whatever of causality.’” Wojcik v. Mem’l Hermann Health Sys., No. CV
H-17-3198, 2019 WL 4887265, at *6 (S.D. Tex. Oct. 3, 2019) (quoting Clark Cty.
Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001)). In short, Charles’s prima facie
case for Title VII retaliation fails because she cannot establish a causal connection
between her termination (which she became aware of through the April 23, 2019
Notice of Intent to Terminate) and her Title VII-protected activity of complaining
to management (which took place one day after she received the April 23, 2019
Notice of Intent to Terminate).
Even if Charles could, hypothetically, establish a prima facie case for Title
VII retaliation, that just means that the burden would shift to UTMB to
demonstrate a legitimate, nonretaliatory reason for terminating Charles. As
already noted, UTMB has easily satisfied this burden, advancing several reasons—
most notably, poor job performance—for terminating Charles’s employment. The
burden then shifts back to Charles to provide “sufficient evidence that [UTMB’s]
proffered reason is a pretext for retaliation.” Nall, 917 F.3d at 349. Charles cannot
Charles did file a grievance with the UTMB back in September 2018, but that grievance
did not allege that UTMB had engaged in any unlawful conduct. See Dkt. 32-4 at 4.
Charles simply complained to the Human Resources department that she felt that she was
“being singled out for something that affects us all.” Id.
2

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meet this burden. The fact that UTMB informed Charles that it intended to
terminate her employment before she ever engaged in any protected activity makes
it impossible for a factfinder to conclude that UTMB’s proffered explanation for
Charles’s termination “is false or unworthy of credence.” Delaval, 824 F.3d at 480
(quotations omitted). This is an independent reason why summary judgment is
appropriate in favor of UTMB on the Title VII retaliation claim.
D.

DISCRIMINATION UNDER THE REHABILITATION ACT
Next, Charles contends that UTMB discriminated against her based on a

disability in violation of the Rehabilitation Act. The disability Charles suffers from
is not immediately clear, though the parties do not dispute that Charles suffers
from a disability.
For summary judgment purposes, disability discrimination claims under the
Rehabilitation Act are also analyzed under the familiar burden-shifting framework
set forth in McDonnell Douglas. See Cohen v. Univ. of Tex. Health Sci. Ctr., 557 F.
App’x 273, 277 (5th Cir. 2014). To survive summary judgment on a Rehabilitation
Act discrimination claim, Charles must first establish a prima facie case. The four
elements of a prima facie discrimination claim under the Rehabilitation Act
require Charles to demonstrate: (1) she is a disabled individual; (2) she is otherwise
qualified; (3) she works for a program or activity receiving federal financial
assistance; and (4) she was discriminated against “solely” because of her disability.
Hileman v. City of Dall., 115 F.3d 352, 353 (5th Cir. 1997) (quotation omitted).
Charles satisfies the first three elements—she has a disability, she was
otherwise qualified for the job, and UTMB is a program receiving federal financial
assistance. So, whether summary judgment is proper turns on the fourth element.
UTMB contends that Charles’s “Rehabilitation Act discrimination claim fails
because she cannot prove she was discriminated against, or that any such
discrimination was solely due to her disability.” Dkt. 31 at 29.
The causation requirement dooms any direct claim Charles may have for
disability discrimination under the Rehabilitation Act. A plaintiff seeking to prevail
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on a Rehabilitation Act discrimination claim must prove that the discrimination
against her took place “solely because of the disability.” Soledad v. U.S. Dep’t of
Treasury, 304 F.3d 500, 505 (5th Cir. 2002) (quotation omitted). This is a much
higher level of causation than that required for Title VII discrimination claims. See
id. To establish causation for Title VII discrimination claims, a plaintiff must
merely show that the discrimination was the “motivating factor” behind the
adverse employment action. Alvarado v. Tex. Rangers, 492 F.3d 605, 611 (5th Cir.
2007). The uncontroverted summary judgment evidence establishes that UTMB
had no knowledge of Charles’s disability until she requested a disability
accommodation on April 24, 2019, a day after UTMB informed Charles that it
intended to terminate her employment for poor job performance. This timeline
conclusively demonstrates that Charles cannot establish that her disability was the
sole cause of her termination from UTMB.
Where, as here, a claim of disability discrimination is based in part on a
theory of failure to accommodate the plaintiff’s disability, the plaintiff must show
by a preponderance of the evidence (1) that she had a disability; (2) that the
employer had notice of her disability; (3) that she could perform the essential
functions of the position with no more than a reasonable accommodation by the
employer; and (4) that the employer denied her request for a reasonable
accommodation. See Dugger v. Stephen F. Austin State Univ., 232 F. Supp. 3d
938, 954 n.7 (E.D. Tex. 2017) (noting that “[t]he Fifth Circuit has sometimes
articulated those elements differently, but the court has been consistent with
respect to the substance of the elements”). Summary judgment is appropriate in
favor of UTMB on the failure to accommodate claim because Charles does not
present any evidence that creates a fact issue on the fourth element: that UTMB
denied her request for a reasonable accommodation.
Dr. Hussein’s recommended accommodations—(1) that Charles lift no more
than 15-20 pounds; and (2) that Charles sit for no more than one hour without
getting up and walking for at least five minutes—were unnecessary because
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Charles’s job did not require her to lift more than 20 pounds, and she could already
get up and walk at least five minutes of every hour. Charles does not address this
point in her response, focusing instead on her claim that the UTMB did not engage
in good faith in the interactive process. The interactive process “is a flexible giveand-take between the employer and employee, so that together they can determine
what accommodation would enable the employee to continue working.” Ward v.
McDonald, 762 F.3d 24, 32 (D.C. Cir. 2014) (quotation omitted). Even if I assume
that Charles is correct and UTMB did not engage in good faith in the interactive
process, she “must also establish that the interactive process would have likely
produced a reasonable accommodation.” Barber ex rel. Barber v. Colo. Dep’t of
Revenue, 562 F.3d 1222, 1231 (10th Cir. 2009). See also Bailey v. Bd. of Comm’rs
of La. Stadium & Exposition Dist., 484 F. Supp. 3d 346, 434 (E.D. La. 2020)
(“Thus, a failure to engage in the interactive process is only actionable if, among
other things, a good faith effort to assist the disabled could have resulted in a
reasonable accommodation.” (quotation omitted)), aff’d sub nom. Bailey v.
France, 852 F. App’x 852 (5th Cir. 2021). Charles’s failure to identify such a
reasonable accommodation is fatal to her claim.
To the extent Charles bases her claim on UTMB’s alleged failure to engage
in the interactive process after receiving information from her neurologist, that
claim is also doomed. The recommendation of Charles’s neurologist, Dr. Khalil,
was that she not return to work. Not working is not a reasonable accommodation.
See Moss v. Harris Cnty. Constable Precinct One, 851 F.3d 413, 419 (5th Cir. 2017)
(“taking leave without a specified date to return . . . is not a reasonable
accommodation”); Reed v. Petroleum Helicopters, Inc., 218 F.3d 477, 481 (5th Cir.
2000) (holding that “indefinite leave” is not a reasonable accommodation); Gilbert
v. Frank, 949 F.2d 637, 642 (2d Cir. 1991) (“‘reasonable accommodation’ does not
mean elimination of any of the job’s essential functions”). Charles points to no
authority to suggest otherwise. Thus, I must recommend that UTMB’s motion for

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summary judgment be granted as to her claim of discrimination under the
Rehabilitation Act.
E.

RETALIATION UNDER THE REHABILITATION ACT
Charles also advances a retaliation claim under the Rehabilitation Act. The

prima facie elements for a retaliation claim under the Rehabilitation Act are
identical to a retaliation claim brought under Title VII. See Shurb v. Univ. of Tex.
Health Sci. Ctr., 63 F. Supp. 3d 700, 711 (S.D. Tex. 2014). Accordingly, Charles’s
Rehabilitation Act retaliation claim fails for the same reason her Title VII
retaliation claim failed. The portion of Charles’s response addressing her
retaliation claim under the Rehabilitation Act deals entirely with her April 24, 2019
letter responding to UTMB’s Notice of Intent to Terminate and the events that
followed. Assuming the April 24, 2019 response constitutes a protected activity, it
is no evidence of causality because UTMB had already contemplated terminating
her. See supra at 11–12 (Sec. C). Therefore, I recommend granting UTMB’s motion
for summary judgment as to retaliation under the Rehabilitation Act.
F.

DAMAGES/MITIGATION
As a final matter, UTMB argues that summary judgment is appropriate

because Charles has no damages and has failed to mitigate her damages. Because
I am already granting summary judgment in favor of UTMB, I need not address
these additional arguments.
CONCLUSION
For all the reasons stated above, I recommend that UTMB’s Motion for
Summary Judgment (Dkt. 31) be GRANTED.
The Clerk shall provide copies of this Memorandum and Recommendation
to the respective parties who have 14 days from receipt to file written objections
under Federal Rule of Civil Procedure 72(b) and General Order 2002–13. Failure
to file written objections within the time period mentioned shall bar an aggrieved
party from attacking the factual findings and legal conclusions on appeal.

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SIGNED this

day of August 2022.
______________________________
ANDREW M. EDISON
UNITED STATES MAGISTRATE JUDGE

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