Profit v. Klein Independent School District

Filing 28

OPINION AND ORDER OF DISMISSAL granting 13 Motion to Dismiss and granting 18 Amended Motion to Dismiss. Case terminated on 6/23/2015.(Signed by Judge Melinda Harmon) Parties notified.(rhawkins)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
KATHERINE PROFIT,
Plaintiff,
VS.
KLEIN INDEPENDENT SCHOOL
DISTRICT,
Defendant.

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Civ. A. H-14-0850

OPINION AND ORDER OF DISMISSAL
Pending before the Court in the above referenced cause,
alleging intentional discrimination in denying Plaintiff Katherine
Profit (“Profit”) a reasonable accommodation for her disabilities
in violation of the Americans With Disabilities Act of 1990
(“ADA”),

42

Independent

U.S.C.
School

§12101,

et

District’s

seq.,

are

(“KISD’s”)

Defendant

motion

to

Klein
dismiss

(instrument #13) and amended motion to dismiss (#18) pursuant to
Federal Rule of Civil Procedure 12(b)(1).

While the Court assumes

that the substance of the amended motion supersedes the first
motion, there are documents attached to the first motion that are
relevant to both and which the Court considers in resolving the
motions.
Standard of Review
Rule 12(b)(1) allows a party to move for dismissal of an
action for lack of subject matter jurisdiction.

The party

asserting that subject matter exists, here the plaintiff, must
bear the burden of proof by a preponderance of the evidence for a
12(b)(1) motion.

New Orleans & Gulf Coast Ry. Co. v. Barrois, 533

F.3d 321, 327 (5th Cir. 2008); Ramming v. United States, 281 F.3d
-1-

158, 161 (5th Cir. 2001). In reviewing a motion under 12(b)(1) the
court may consider (1) the complaint alone; (2) the complaint
supplemented by undisputed facts evidenced in the record; or (3)
the complaint supplemented by undisputed facts plus the court’s
resolution of disputed facts. Williamson v. Tucker, 645 F.2d 404,
413 (5th Cir. 1981).
A

motion

to

dismiss

for

lack

of

subject

matter

jurisdiction under Rule 12(b)(1) is characterized as either a
“facial” attack, i.e., the allegations in the complaint are
insufficient to invoke federal jurisdiction, or as a “factual”
attack, i.e., the facts in the complaint supporting subject matter
jurisdiction are questioned.

In re Blue Water Endeavors, LLC,

Bankr. No. 08-10466, Adv. No. 10-1015, 2011 WL 52525, *3 (E.D.
Tex. Jan. 6, 2011), citing Rodriguez v. Texas Comm’n of Arts, 992
F. Supp. 876, 878-79 (N.D. Tex. 1998), aff’d, 199 F.3d 279 (5th
Cir. 2000). A facial attack happens when a defendant files a Rule
12(b)(1)

motion

without

accompanying

evidence.

Paterson

v.

Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). In a facial attack,
allegations in the complaint are taken as true.

Blue Water, 2011

WL 52525 at *3, citing Saraw Partnership v. United States, 67 F.3d
567, 569 (5th Cir. 1995).
If it is a factual attack, the Court may consider any
evidence (affidavits, testimony, documents, etc.) submitted by the
parties that is relevant to the issue of jurisdiction.

Id.,

citing Irwin v. Veterans Admin., 874 F.2d 1092, 1096 (5th Cir.
1989).

A defendant making a factual attack on a complaint may

provide supporting affidavits, testimony or other admissible
-2-

Patterson v. Weinberger, 644 F.3d 521, 523 (5th Cir.

evidence.
1981).

The plaintiff, to satisfy her burden of proof, may also

submit evidence to show by a preponderance of the evidence that
subject

matter

jurisdiction

exists.

Id.

The

court’s

consideration of such matters outside the pleadings does not
convert the motion to one for summary judgment under Rule 56(c).
Robinson v. Paulson, H-06-4083, 2008 WL 4692392 at *10 (S.D. Tex.
Oct. 28, 2008), citing Garcia, 104 F.3d at 1261.

“Unlike in a

facial attack where jurisdiction is determined upon the basis of
allegations of the complaint, accepted as true[,] when a factual
attack is made upon federal jurisdiction, no presumption of
truthfulness

attaches

to

the

plaintiff’s

jurisdictional

allegations, and the court is free to weigh the evidence and
satisfy itself as to the existence of its power to hear the case.
In a factual attack, the plaintiffs have the burden of proving
that federal jurisdiction does in fact exist.”
657 F.2d 661, 663 (5th Cir. 1981).

Evans v. Tubbe,

In resolving a factual attack

on subject matter jurisdiction under Rule 12(b)(1), the district
court, which does not address the merits of the suit,1 has

1

As the court explained in Taylor v. Dam, 244 F. Supp.
2d 747, 753 (S.D. Tex. 2003),
It is well settled that “a district court has
broader power to decide its own right to hear
the case than it has when the merits of the
case are reached.” [ Williamson v. Tucker,
645 F.2d 404, 413 (5th Cir.). cert. denied ,
454 U.S. 897 (1981).] “Jurisdictional issues
are for the court--not the jury--to decide,
whether they hinge on legal or factual
determinations.
Id. To determine whether
jurisdiction exists, the court will generally
resolve any factual disputes from the
-3-

significant authority “‘to weigh the evidence and satisfy itself
as to the existence of its power to hear the case.’”

Robinson v.

Paulson, No. H-06-4083, 2008 WL 4692392, *10 (S.D. Tex. Oct. 22,
2008), quoting Garcia v. Copenhaver, Bell & Assocs., 104 F.3d
1256, 1261 (11th Cir. 1997), and citing Clark v. Tarrant County,
798 F.2d 736, 741 (5th Cir. 1986).
Relevant Factual Allegations of the First Amended Complaint (#6)
Profit

began

working

for

KISD’s

Transportation

Department in approximately January 2009 by helping special needs
students to get on and off school buses and monitoring them during
transport to ensure the safety of all passengers and the bus
driver.

In March 20ll, in the course and scope of her employment

she suffered injuries to her back, left shoulder, left arm, and
neck when she was pushed into a wall by a student passenger.

As

a result, and at the advice of a physician, she was placed on
light duty work.

Subsequently in February 2012, she was in an

automobile accident, which exacerbated her earlier injuries, for
which she was prescribed pain medicine.

From March or April 2012

through August 2012, at the advice of medical professionals she
informed KISD that her injuries and medication prevented her from

pleadings and the affidavits submitted by the
parties. See Espinoza v. Missouri Pac. R.R.
Co., 754 F.2d 1247, 1248 n.1 (5th Cir. 1985).
The court may also conduct an evidentiary
hearing and “may hear conflicting written and
oral evidence and decide for itself the
factual issues which determine jurisdiction.”
Williamson, 645 F.2d at 413; see Menchaca v.
Chrysler Credit Corp.,613 F.2d 507, 511-12
(5th Cir.), cert. denied, 449 U.S. 953 . . .
(1980).
-4-

heavy lifting and effectively assisting emotionally challenged
students and that she was to avoid lifting, pulling, and/or
pushing weights of ten pounds or more, as well as movements that
would require reaching objects above the level of her shoulders,
and she requested a reassignment accommodation.

Profit also

claims that she was diagnosed with post traumatic stress disorder
caused by job-related matters.

She maintains that these medical

problems rendered her disabled, unable to perform life activities
that the average person in the general population can perform.
Nevertheless, she claims that KISD denied and continued
to deny her repeated requests for a reasonable accommodation,
specifically

she asked for a reassignment to an available

position in an office setting with light duty desk jobs, a
position which she claims was available at that time and which had
been customarily provided to other similarly situated injured
employees.

She claims that such an accommodation would not have

imposed any hardship or burden on KISD nor posed any safety
issues.
Profit states that in April 2012 KISD offered her a
modified work accommodation which would have required her to
perform the same or similar functions that she had been medically
instructed not to perform and which would have placed her personal
safety at risk of further injury as well as posed a possibility of
injury to students and bus operators.
she was forced to resign.

-5-

She argues that as a result

Substantive Law
Title I of the Americans with Disabilities Act (“ADA”),
42 U.S.C. § 12112(a), prohibits discrimination against an employee
on the basis of physical or mental disability and requires an
employer to make reasonable accommodations necessary to allow an
employee with a disability to perform the essential functions of
her job unless the accommodation would impose an undue hardship on
the employer.

Section 12112(a) of the ADA provides that no

covered entity shall “discriminate” against a qualified individual
with a disability because of the disability of such an individual
in regard to, inter alia, “the hiring, advancement, or discharge
of employees . . . and other terms, conditions, and privileges of
employment.”
term,

In addition, Section 12112(b)(5) states that the

“discriminate,”

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 undue hardship on the operations of the business of such
covered entity.”

A “qualified individual with a disability” is

defined as “an individual with a disability

who, with or without

reasonable accommodation, can perform the essential functions of
the employment position that such individual holds or desires. 42
U.S.C. § 12111(8).
A

covered

employer

must

provide

reasonable

accommodations to an otherwise qualified person with a disability
unless the employer can show that the accommodation “would impose
an undue hardship” on the employer.
-6-

42 U.S.C. § 12112(b)(5)(A).

The

plaintiff

bears

accommodations.

the

burden

of

requesting

reasonable

Jenkins v. Cleco Power, LLC, 487 F.3d 309, 315

(5th Cir. 2007).
While

the

employee

has

a

right

to

a

reasonable

accommodation, the right is not to his preferred accommodation.
Id., citing id.

“‘The employee bears the burden of proving that

an available position exists that he was qualified for and could,
with reasonable accommodations, perform.’”

Id., quoting Jenkins

v. Cleco Power, LLC, 487 F.3d 309, 315 (5th Cir. 2007).

“‘A

disabled employee has no right to a promotion, to choose what job
to which he will be assigned, or to receive the same compensation
as he received previously.’”

Id., quoting id. at 316.

“‘[W]hen

an employer’s unwillingness to engage in a good faith interactive
process leads to a failure to reasonably accommodate an employee,
the employer violates the ADA.’”

Id., quoting Loulseged v. Akzo

Nobel, Inc., 178 F.3d 731, 736 (5th Cir. 1999).

“‘[A]n employer

cannot be found to have violated the ADA when responsibility for
the breakdown of the ‘informal interactive’ process is traceable
to the employee and not the employer.’”
The

Id., quoting id.

ADA was amended by the Americans with Disabilities

Act Amendments Act of 2008 (“ADAAA”), which by its express
language became effective on January 1, 2009, while the final
regulations issued by the EEOC became effective on May 25, 2011.
76 Fed. Reg., 16978, 16999 (2011).

“The ADAAA is principally

aimed at reversing Supreme Court precedent perceived as improperly
narrowing the scope of protection originally intended by drafters
of the ADA.” Louis P. DiLorenzo, The Intersection of the FMLA and
-7-

ADA--As Modified by NDAA, ADAAA and GINA, 860 PLI/Lit 47, 83-84
(June 23, 2011); 29 C.F.R. § 1630.1(c)(4)(“reinstating a broad
scope

of

protection

under

the

ADA”;

“the

definition

of

‘disability’ shall be construed broadly in favor of expansive
coverage to the maximum extent permitted by the terms of the
ADA”).

The EEOC emphasized that “the primary object of attention

in cases . . . should be whether the covered entities have
complied with their obligations and whether discrimination has
occurred, not whether the individual meets the definition of
disability.”

29 C.F.R. § 1630.1(c)(4).

Mitigating

measures

(such

as

medications,

medical

devices and assistive technology) are ignored when assessing
whether an impairment substantially limits a person’s major life
activities.

ADA Amendments Act of 2008, Sec. 4 § 3(4)(E)(1), 122

Stat. 3553, 3556.

Moreover, the court may consider the negative

effects of a mitigating measure, e.g., effects of medication, in
determining whether the individual is substantially limited in a
major life activity.
Simply having an impairment is insufficient to make one
disabled under the statute; a plaintiff must also show that the
impairment substantially limits a major life activity.

Chevron

Phillips, 570 F.3d at 614, citing Toyota Motor, 534 U.S. 184, 195
(2002).

The implementing regulations in § 1630.2(I) provides a

non-exhaustive

list

of

major

life

activities,

which

include

“caring for oneself, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and walking.”

29 C.F.R.

§ 1630.2(I); id. Moreover, “to be substantially limited means to
-8-

be unable to perform a major life activity that the average person
in the general population can perform or to be significantly
restricted in the ability to perform it.”
§ 1630.2(j).

Id., citing 29 C.F.R.

In deciding whether a person is “substantially

limited in a major life activity, the Equal Employment Opportunity
Commission (“EEOC”) advised that courts should consider: ‘(i) the
nature and severity of the impairment, (ii) the duration or
expected duration of the impairment; and (iii) the permanent or
long term impact, or the expected permanent or long term impact of
or resulting from the impairment.’”
C.F.R. § 1630.2(j).

Id. at 614-15, citing 29

“[W]hether an individual is disabled under

the ADA . . . remains an individualized inquiry.”

Id. at 620.

The ADAAA directs that “substantially limits” should not
be as strictly construed as some courts have required in the past
and should not require “extensive analysis.”
of 2008, §2(b)(5), 122 Stat. 3553, 3558.

ADA Amendments Act
The ADAAA has added

“major bodily functions” (e.g., the immune system, normal cell
growth,

digestive,

bowel,

bladder,

neurological,

brain,

respiratory, circulatory, endocrine, and reproductive functions)
to the ADA’s list of major life activities, including caring for
oneself,

performing

manual

tasks,

seeing,

hearing,

eating,

sleeping, standing, sitting, reaching, lifting, bending, reading,
concentrating,

thinking,

communicating,

and

working,

while

defining “physical or mental impairment” as any physiological
disorder or condition, cosmetic disfigurement or anatomical loss
affecting

one

or

more

body

systems,

-9-

as

well

as

mental

or

psychological disorder.

ADA Amendments Act of 2008, Pub. L. No.

110-325, Sec. 4, § 3(2)(A) and (B), 122 Stat. 3553, 3555.
Moreover, while retaining the basic definition of
disability under the ADA (“a physical or mental impairment that
substantially

limits

one

or

more

major

life

activities”),

“disability” now includes an impairment that is episodic or in
remission if it would substantially limit a major life activity
when active; examples include epilepsy, hypertension, asthma,
diabetes, major depression, bipolar disorder, schizophrenia, and
cancer.

ADA Amendments Act of 2008, Sec. 4, § 3(4)(D), 122 Stat.

3553, 3555; 29 C.F.R. § 1630(j)(5).

An impairment lasting less

than six months can be substantially limiting.
1630.2(j)(1)(ix).

29 C.F.R. §

An impairment that is in remission but may

return in a substantially limiting form is a disability under the
ADAAA. 29 C.F.R. § 1630.2(j)(1)(vii). The ADAAA also amended its
earlier definition of “major life activity” as “activities that
are of central importance to most people’s daily lives,” instead
indicating that the word “major” must “not be interpreted strictly
to create a demanding standard for disability.”
1630.2(i)(2).
activity
grasping,

of
or

Under
manual

the

ADAAA,

tasks,

such

pressuring,

“need

tasks
as

not

29 C.F.R. §

involving

fine

motor

constitute

central importance to most people’s lives.”

major

life

coordination,
activities

of

Appendix to Part

1630, Interpretive Guidance on Title I of the Americans With
Disabilities Act § 1630.2(i); 76 Fed. Reg. at 17008.

To be

“substantially limiting” an impairment does not have to prevent or

-10-

significantly restrict a person from performing a major life
activity.

Id.
Before a complainant may file suit under the ADA, she

must exhaust the statute’s administrative prerequisites.

Dao v.

Auchan Hypermarket, 96 F.3d 787, 788-89 (5th Cir. 1996).

The ADA

incorporates the enforcement procedures of Title VII of the Civil
Rights Act of 1964.

See 42 U.S.C. § 12117(a) (“The powers,

remedies, and procedures set forth in sections 2000e-4, 2000e-5,
2000e-6, and 2000e-9 of this title shall be the powers, remedies
and procedures that this subchapter provides . . . to any person
alleging discrimination on the basis of disability in violation of
any provision of this chapter, or regulations under section 12116
of this title, concerning employment.”).
a charge of disability discrimination

The plaintiff must file

with the Equal Employment

Opportunity Commission (“EEOC”) within 180 days of the illegal
act, or within 300 days if she has filed a complaint with the
state or local agency, i.e., the Texas Workforce Commission Civil
Rights Division in Texas, and receive a statutory right-to-sue
letter from the EEOC before filing suit in federal court.

42

U.S.C. § 2000e-5(e)(1); DAO, 96 F.3d at 788-89; Ikossi-Anastasiou
v. Board of Supervisors of La. State Univ., 579 F.3d 546, 549 (5th
Cir. 2009); Tyler v. Union Oil Co. of Cal., 304 F.3d 379, 384 (5th
Cir. 2002); Cisneros v. DAKM, Inc. , No. 7:13-CV-556, 2014 WL
258755, at *2 (S.D. Tex. Jan 23, 2014).

If the EEOC fails to act

within 180 days and there is no final agency action, under §
2000e-16, “after one hundred and eighty days from the filing of
the initial charge with the department . . . an employee . . . if
-11-

aggrieved by the . . . failure to take final action on his
complaint, may file a civil action.”

Thomas v. Napolitano, 449

Fed. Appx. 373, at *1-2 (5 th Cir. Nov. 9, 2011), citing Martinez
v. Department of U.S. Army, 317 F.3d 511-12, 513 (5th Cir. 1003),
citing Munoz v. Aldridge, 894 F.2d 1489, 1492-94 (5th Cir. 1990).
If the EEOC issues a right-to-sue letter, the employee must file
a civil action in federal court within ninety days.
Some courts in the Fifth Circuit have held that the
requirement of filing a charge with the EEOC is jurisdictional,
but most have held that it is a statutory precondition to filing
suit in federal court.

See, e.g., Pacheco v. Mineta , 448 F.3d

783, 788 n.7 (5th Cir. 2006), cert. denied, 549 U.S. 888 (2006):
There is disagreement in this circuit on
whether a Title-VII prerequisite, such as
exhaustion, is merely a prerequisite to suit,
and thus subject to waiver and estoppel, or
whether it is a requirement that implicates
subject matter jurisdiction. The Supreme
Court has held that the EEOC or EEO filing
deadlines are not jurisdictional. Zipes v.
Trans World Airlines, Inc., 455 U.S. 385 . .
. (1982). . . . However, the reasoning in
Zipes, which cites our en banc holding in
Coke [v. General Adjustment Bureau, Inc., 640
F.2d 58 (5th Cir. 1981)] with approval, relies
heavily on legislative history and Supreme
Court precedents that characterize the filing
deadlines as statutes of limitations.”
See

also

Taylor

v.

Books

A

Million,

296

F.3d

376,

379

(2002)(“Although the filing of an EEOC charge is not a
jurisdictional prerequisite, it is a ‘precondition to filing suit
in district court.’”); Clark v. Kraft Foods, Inc., 18 F.3d 1278,
1279 (5th Cir. 1994)(“As a jurisdictional predicate Clark had to
exhaust EEOC remedies for sex-based discrimination . . . .”).

-12-

In

Pachego the Fifth Circuit affirmed the district court’s dismissal
under

Rule

remedies.

12(b)(1)

for

failure

to

exhaust

administrative

448 F.3d at 795.
The Fifth Circuit has held that the 180-day limitations

period begins to run on the date when the discriminatory act
occurs, not when the victim perceives that a discriminatory motive
caused the act.

Merrill v. Southern Methodist University, 806

F.2d 600, 605 (5th Cir. 1986)(regarding Title VII), citing Delaware
State

College

v.

Ricks,

449

U.S.

250

(1982);

Reveles

v.

Napolitano, 595 Fed. Appx. 321, 324 (5th Cir. Dec. 12, 2014)(Title
VII); Simotas v. Kelsey-Seybold, 211 Fed. Appx. 273, 275 (5th Cir.
Dec. 6, 2006)(“The relevant date for determining the beginning
date for the limitations period [for the ADA] is the day the
employee learns that the challenged decision has been made, not
when she feels the effects of that decision.”); Ramirez v. City of
San Antonio, 312 F.3d 178, 181 (5th Cir. 2002)(ADA)(“We have held
that the limitations period on an employment discrimination claim
‘begins to run from the time the complainant knows or reasonably
should have known that the challenged act has occurred.’”)(quoting
Vadi v. Mississippi State Univ., 218 F.3d 365, 371 (5th Cir. 2000).
The statute of limitations begins to run at the time of the
allegedly
employment

discriminatory
continues,

and

decision,
the

even

if

the

plaintiff’s

consequences of the allegedly

discriminatory act--termination--do not occur until later.
State

College

v.

Ricks,

449

U.S.

250,

257-58

Del.

(1980)(“Mere

continuity of employment, without more, is insufficient to prolong
the life of a cause of action for employment discrimination. . .
-13-

. [T]he only alleged discrimination occurred--and the filing
limitations periods therefore commenced--at the time the tenure
decision was made and communicated to Ricks.

That is so even

though one of the effects of the denial of tenure-the eventual
loss of a teaching position-did not occur until later.”).
KISD’s Motion to Amend and First Amended Motion to Dismiss
To its original motion to amend (#13), KISD attaches
inter alia a copy of Profit’s EEOC charge alleging disability
discrimination, dated May 28, 2013, and a copy of Profit’s charge
filed with the Texas Workforce Commission dated May 23, 2013 (#131), and Profit’s Notice of Resignation/Retirement to KISD, dated
and effective as of March 21, 2012.
KISD attaches two business records to its amended motion
to dismiss (#18).

The first, Ex. A-1 (#18-3), is a letter sent by

Profit and received by KISD on August 4, 2012, stating that she
had been on leave of absence since March of 2012 because of side
effects of pain medication which made her unable to perform her
job duties.

It further represents that on March 26, 2012 she had

a panic attack, ascribed to the new medication, she had to be
taken to the hospital by ambulance, and her doctor advised her to
be placed on light duty in an office setting and not placed on a
bus with children.

In a footnote, KISD explains that this March

26 date on page 1 of Exhibit A-1 is presumably a typographical
error because the incident she describes occurred on her last day
at work, which was March 20, 2012.

On page 2 of the same

document, she correctly refers to the incident “on March 20,
2012.”

Profit’s letter also states that she had a previous attack
-14-

unrelated to her job on February 21, 2012, when she fainted, but
which

medical

condition

would

affect

her

function

as

a

bus

attendant, and that she had already written KISD several letters
about the problem.

After the March 2012 incident resulting in her

injuries, Profit asserts that she informed KISD of her medical
condition

and

requested

an

accommodation, but in response
bus.”

office

job

as

a

reasonable

KISD had her “placed back on the

Finally the letter states, “Management has been well aware

of my medical issue and refuse [sic] to remove me from the bus
while under doctor care for the job injury.
could have been avoided.”

This inccident [
sic]

#18-3, Ex. A-2 p.2.

Exhibit A-2 (#18-4), is a KISD Leave of Absence Request,
signed by Profit on September 14, 2012, asking for a leave of
absence dating back to March 20, 2012, her last day at work at
KISD.

Her resignation was accepted by KISD that same date (March
Id.2 at p. 2.

20, 2012).

KISD emphasizes Profit’s allegation in her First Amended
Complaint (#6 at pp. 4-5, ¶ 18 that KISD violated the ADA “as
early as March or April 2012" when KISD offered her a modified bus
attendant position in April 2012 (which purportedly required
functions she had been medically advised should be avoided),
rather than the desk job she had requested.

2

She did not file her

On September 21, 2012, Profit submitted a Notice of
Resignation as of March 21, 2012; her last day at work had been
March 20, 2012. #13-1, Ex. A-2. Subsequently KISD determined
that Profit instead wanted to be placed on an extended unpaid
administrative leave, and KISD complied, extending it back to
March 20, 2012, to allow her to reapply for active duty after
recovery from her disability. #18-4, Ex. A-2.
-15-

EEOC charge until May 23, 2013, more than a year later.

The

relevant limitations period for filing an EEOC charge begins to
run when an employee first knows or reasonably should have known
that a violation of the ADA had occurred.
371).

See Vadi, 218 F.3d at

KISD argues that in this case it began to run at the very

latest

when

Profit

was

offered

this

modified

bus

attendant

position in April, an offer that implicitly denied her request for
her

proposed

office

job

as

a

reasonable

accommodation.

Additionally, however, KISD emphasizes the documents (Exhibits A1, A-2, and A-3) attached to its motion show that Plaintiff last
reported to work on March 20, 2012, her EEOC charge does not
allege any facts occurring after April 2012, and her August 2012
correspondence to KISD concedes that she was placed in a bus
attendant position in March 2012 after she notified KISD of her
request for an office job to reasonably accommodate her alleged
disability.
Profit’s Response (#22)
Profit contends that the modified work accommodation
still on the bus offered to her by KISD in April 2012 had her
performing the same duties she was medically restricted from
perform, and was therefore unsatisfactory.
duty

to

reasonably

accommodate

an

Noting that “[t]he

individual’s

disability

continues for as long as the limitation persists, she maintains
that KISD failed to meets its continuing obligation to reasonably
accommodate her disability.

Ralph v. Lucent Technologies, Inc.,

135 F.3d 166, 172 (1st Cir. 1998)(“The duty to provide reasonable
accommodation is a continuing one . . . and not exhausted by one
-16-

effort.”); in accord, Bultemeyer v. Fort Wayne Community Schools,
100 F.3d 1281, 1285 (7th Cir. 1996).

She renewed her request on

or around August 12, 2012, but KISD still failed to accommodate
her.

She argues that the renewed request and KISD’s subsequent

denial triggered

a new limitations period.

Profit argues that

KISD’s denial of her March or April 2012 request for accommodation
was a discrete act of discrimination that may have triggered the
300-day statutory limitations period, but that her renewed request
in August 2012, also rejected by KISD, made her charge filed with
the EEOC, complaining of the March/April 2012 denial of reasonable
accommodation, timely. Elmenayer v. ABF Freight System, Inc., 318
F.3d 130, 135 (2d Cir. 2003)(“[W]e do not decide what the effect
would

be if the employee renews the request for an

accommodation.”).3
Alternatively, should the Court determine her charge was
untimely, Profit argues that on or about March 2012, when she was
without assistance of counsel, she searched for a federal agency
with whom she could file a complaint of disability discrimination
and did so with the U.S. Department of Education, Office of Civil
Rights, on or about March 22, 2012, although she concedes that her
complaint did not mention a failure to accommodate her.

Therefore

her claim should not be dismissed because she raised a claim
reasonably related to those asserted in the EEOC filing even

3

Questioning
Profit’s
choice
of
authority
as
inapposite, KISD points out that Elemenayer does not support her
continuing violation argument because it explicitly declined to
rule on the effect on an employee’s renewed request for
accommodation.
-17-

though it was not addressed to the EEOC.

Cornwell v. Robinson, 23

F.3d

action

694,

706

(2d

Cir.

1994)(“In

an

in

which

those

procedural requirements have been satisfied, the plaintiff may
raise any claim that is ‘reasonably related’ to those asserted in
the EEOC filing, even if that claim was not expressly addressed by
the EEOC.”.
KISD’s Reply (#23)
Observing that Profit has acknowledged that she first
notified KISD of her request for accommodation in March 2012, that
her request was denied in March or April 2012, that she failed to
file a charge with the EEOC until May 23, 2013, and that she had
actual knowledge of the denial of her request for an accommodation
on or before March 22, 2012, KISD insists her claim is time-barred
under 43 U.S.C. § 2000e-5(e).
Her

claim

that

her

renewed

request

for

the

same

accommodation in August 2012 gave rise to a separate and discrete
violation of the ADA that provides its own 300-day limitations
period is in essence an effort to use the continuing violation
doctrine.

Because her second request in August 2012 constitutes

a later effect of the original violation, it fails to qualify for
the continuing violation doctrine.

Hendriz v. Yazoo City, 911

F.2d 1102, 1103 (5th Cir. 1990)(“If the discrimination alleged is
solely the result off a single violation that occurred outside the
statute of limitations, the later effect of this act does not
constitute a continuing violation of the statute.”).4

4

The key

Citing inter alia Delaware State College v. Ricks, 449
U.S. 250, 257 (when a professor charged unlawful termination by a
-18-

question is “whether the original discriminatory act had a ‘degree
of permanence that should trigger an employee’s awareness of and
duty to assert her rights.’”

Hendrix, 911 F.2d at 1103, citing

Berry v. Board of Supervisors, 714 F.2d 971 (5th Cir. 1983).5 Here,
KISD argues that it made its decision to deny Profit’s request for
a desk job as an accommodation for her claimed disability in
March/April 2012, and Profit admits that KISD merely maintained
its original position in response to her August 2012 reurging her
prior request.

KISD urges that this reiteration must be seen as

university, holding that the discriminatory denial of tenure,
rather than the subsequent termination of employment one year
later, was the triggering event for purposes of the statute of
limitations; “Mere continuity of employment, without more, is
insufficient to prolong the life of a cause of action for
employment discrimination.”), United Air Lines, Inc. v. Evans, 431
U.S. 553, 557-58 (1977)(rejecting plaintiff’s argument that a
current action was a continuing violation and finding that “the
seniority system gives present effect to a past act of
discrimination” and “United was entitled to treat that past acts
as lawful after [the plaintiff] failed to file a [timely] charge
of discrimination”), and Lorance v. AT&T Technologies, 490 U.S.
900 (1989)(proper time to challenge facially discriminatory
seniority system was when the new seniority system was instituted,
these statutes of limitations began to run, and employees’ rights
were diminished).
The Court observes that Lorance was superceded when the
Civil Rights Act of 1991 was enacted, while United Air Lines was
superseded in part by statute, Lilly Ledbetter Fair Pay Act Pub.
L. No. 111-2, 123 Stat. 5 (2009).
5

Berry, 715 F.2d at 981, established a nonexhaustive,
three-factor test to determine whether a continuous violation
exists: (1) “[S]ubject [M]atter. Do the alleged acts involve the
same type of discrimination, tending to connect them in a
continuing violation?”; (2) “[F]requency. Are the alleged acts
recurring . . . or more in the nature of an isolated assignment or
employment decision?”; and (3) “[D]egree of [P]ermanence [perhaps
of most importance] Does the act have the degree of permanence
which should trigger an employee’s awareness of and duty to assert
his or her rights, or which should indicate to the employee that
the continued existence of the adverse consequences of the act is
to be expected without being dependent on a continuing intent to
discriminate?.”
-19-

a later effect of KISD’s original denial, and therefore the
continuing violation doctrine does not operate to save Plaintiff’s
claims when she repeated her request within the 300-day window of
time.
KISD, stating that no court in the Fifth Circuit appears
to have dealt with the question whether a reiterated request for
an accommodation may renew a statute of limitations, cites Hall v.
The Scotts Co., No. 2:05-CV-732, 2005 WL 3499933 (S.D. Ohio Dec.
21, 2005), aff’d. 211 Fed. Appx. 361 (6th Cir. Nov. 7, 2006) in
which in March 2003 an employee forklift operator asked his
employer to provide him with a special respirator/hardhat to aid
with his breathing condition caused by decreased lung capacity.
In August 2003 The Scotts Company refused his request, claiming
safety concerns.

In November 2003 Hall offered to buy the

respirator himself if he would be allowed to wear it while
working, and the company again denied his request on December 20,
2003.

On October 13, 2004 Hall filed a charge of discrimination

with the EEOC, which chose not to act in the coming litigation,
and Hall filed suit under the ADA.

The Scotts Company filed a

motion to dismiss the case as time-barred because the charge was
filed more than 300 days after the initial denial in August 2003.
The court converted it to a motion for summary judgment and
granted it in favor of The Scotts Company.

Although Hall argued

that the parties were involved in an “interactive process” to
accommodate his disability that did not culminate until December
20, 2003, the Court found his November offer to buy the respirator

-20-

was “an impotent attempt” to renew his earlier request and “merely
a consequence of its [earlier] discriminatory act.”
KISD
employee

asserts

that

it

is

well

established

that

an

may not extend or circumvent the limitations period by

requesting the modification or reversal of an employer’s earlier
action.

Delaware State College v. Ricks , 449 U.S. at 261 n.15

(“Mere requests to reconsider . . .

cannot extend the limitations

period applicable to the civil rights laws.”).

“To hold to the

contrary would expose employers to a virtually open-ended period
of liability and would . . . read the statute of limitations right
out of existence.” Abrams v. Baylor College of Medicine, 805 F.2d
528, 534 (5th Cir. 1986).
In sum, insists KISD, because the 300-day limitations
for all of Profit’s claims began in March/April 2012 with the
denial of her request for an accommodation, her claims are timebarred.
Court’s Determination
This Court agrees with KISD’s analysis as a matter of
law.
First, it concurs with KISD that Profit’s August 2012
letter again requesting an office job as an accommodation for her
alleged disability was merely a reiteration of her March/April
2012

request

discriminatory.

and

of

KISD’s

denial

and

not

independently

Opining about Delaware State College v. Ricks

that a plaintiff “could not use a termination that fell within the
limitations period to pull in the time-barred [denial of tenure]

-21-

discriminatory act,” the Supreme Court in National R.R. Passenger
Corp., 536 U.S. at 113, wrote,
We derive several principles from these
cases. First, discrete discriminatory acts
are not actionable if time barred, even when
they are related to acts alleged in timely
filed charges. Each discriminatory act
starts a new clock for filing charges
alleging that act. The charge, therefore,
must be filed within the 180- or 300-day time
period after the discrete discriminatory act
occurred. The existence of past acts and the
employee’s
prior
knowledge
of
their
occurrence, however, does not bar employees
from filing charges about related discrete
acts so long as the acts are independently
discriminatory and charges addressing those
acts are themselves timely filed.
In the instant case, in addition to being merely reiterated
allegations of Profit’s March/April 2012 denial of accommodation,
her August 2012 letter was not “independently discriminatory” to
warrant the latter claim’s being able to restart the limitations
clock on what became a clearly time-barred denial-of-reasonableaccommodation claim in March/April 2012.
Furthermore, the Court observes that in its affirmance
of Hall v. The Scotts Co., 211 Fed. Appx. at 363, the Sixth
Circuit cites three decisions that support the district court’s
decision that Hall’s attempt to renew his earlier, time-barred
request for accommodation was merely a consequence of the earlier
discriminatory act and not the culmination of an interactive
process to accommodate his disability:

Conner v. Reckitt &

Colman, Inc., 84 F.3d 1100, 1102 (8th Cir. 1996)(“[A]llowing [the
plaintiff] to restart the statute of limitations by sending a
letter requesting reasonable accommodations after she has been

-22-

unequivocally fired would destroy the statute of limitations”);
Elmenayer

v.

ABF

Freight

Sys.,

318

F.3d

130,

135

(2d

Cir.

2003)(explaining, “The rejection of a proposed accommodation is a
single completed action when taken, quite unlike the ‘series of
separate acts’ that constitute a hostile work environment and
‘collectively constitute’ an unlawful employment practice”); and
Zdziech v. DaimlerChrysler Corp., 114 Fed. Appx. 469, 472 (3d Cir.
2004)(“To permit [an employee] to reset the statutory requirements
for the timely filing of a complaint merely by writing a new
letter to his former employer would clearly vitiate the intent
behind the 300-day time limit.”).
Furthermore the Fifth Circuit acknowledged in Henson,
128 Fed. Appx. at 391,
Under the continuing violation doctrine, a
plaintiff is relieved of establishing that
all of the alleged discriminatory conduct
occurred within the actionable period if the
plaintiff can show a series of related acts,
one or more of which falls within the
limitations period.
Felton v. Polles, 315
F.3d 470, 487 (5th Cir. 2002). The Supreme
Court has clarified, however, that discrete
discriminatory acts are not actionable if
time barred, even when they are related to
acts complained of in timely filed charges.
Nat’l R.R. Passenger Corp. v. Morgan, 536
U.S. [at 113].
“The continuing violation doctrine does not apply when
‘the relevant discriminatory actions alleged in the complaint
‘[are] the sort[s] of discrete and salient events that should put
an employee on notice that a cause of action has accrued.’‘”
Jurach v. Safety Vision,

LLC,

F. Supp. 3d

, 2014 WL

7151470, at *5 (S.D. Tex. Dec. 12, 2014), quoting Windhauser v.

-23-

Bd. of Supervisors for Louisiana State Univ. & Agr. & Mech. Coll.,
360 Fed. Appx. 562, 566 (5th Cir. 2910), quoting Huckaby v. Moore,
142 F.3d 233, 240 (5th Cir. 1998).

The Jurach court observed that

in Henson v. Bell Helicopter Textron, Inc., 128 Fed. Appx. 387,
391 (5 th Cir. Apr. 8, 2005), the Fifth Circuit, addressing an
alleged

failure

to

accommodate

in

the

repeated

denial

of

a

plaintiff’s requests for time off or scheduling changes that
occurred outside of the limitations period, determined that each
denial of such a request was a discrete act and the plaintiff
therefore did not establish a continuing ADA violation.
cited as

Jurach

examples of “[o]ther circuits [which] have similarly

refused to apply the continuing violation doctrine to [timebarred] discrete denials of a plaintiff’s accommodation requests,”
the following cases:

Elmenayer v. ABF Freight Sys., Inc., 318

F.3d 130, 135 (2d Cir. 2003)(“Once the employer has rejected the
proposed

accommodation,

no

periodic

implementation

of

that

decision occurs. . . . The rejection of a proposed accommodation
is a single complete action when taken, quite unlike the ‘series
of separate acts’ that constitute a hostile work environment and
‘collectively

constitute’

an

unlawful

employment

practice.

Although the effect is similar to the continued effect of being
denied a promotion or denied a transfer, denials that

Morgan

offered as examples of a discrete [discriminatory] acts [that
start[] a new clock for filing charges alleging that act].”),
citing National R.R. Passenger Corp., 536 U.S. at

113;

Aubrey v.

City of Bethlehem, Fire Dep’t, 466 Fed. Appx. 88, 93 (3d Cir.
2012)(“The nature of [the plaintiff’s] claims do not involve
-24-

repeated conduct.”); Proctor v. United Parcel Service, 502 F.3d
1200, 1210 (10th Cir. 2007)(finding that employer’s denial of
requested accommodation “constitutes a discrete act of alleged
discrimination.”).
Accordingly, the Court
ORDERS that KISD’s motion to dismiss (#13) and amended
motion to dismiss (#18) are GRANTED with prejudice.

Because it is

unclear in this Circuit whether such a dismissal is for lack of
subject matter jurisdiction or in the nature of a statute-oflimitations bar, and because Profit has not alleged any facts that
would support estoppel or waiver, the Court
ORDERS that the dismissal is pursuant to both Federal
Rules 12(b)(1) and 12(b)(6).
SIGNED at Houston, Texas, this

23rd

day of

June ,

2015.

___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE

-25-