Howard v. Spencer

Filing 28

REPORT AND RECOMMENDATIONS re 9 Motion to Dismiss/Lack of Jurisdiction, filed by Richard Spencer, 16 Motion for Summary Judgment filed by Richard Spencer. Signed by Judge Derek T. Gilliland. (sm3)

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
WACO DIVISION
CAMILLE FRANCIS-HOWARD,
Plaintiff,

§
§
§
§
§
§
§
§

v.
RICHARD SPENCER, SECRETARY,
DEPARTMENT OF THE ARMY;
Defendant.

W-20-CV-00657-ADA-DTG

REPORT AND RECOMMENDATION REGARDING
DEFENDANT’S MOTION TO DISMISS [ECF NO. 9] AND
MOTION FOR SUMMARYJUDGMENT [ECF NO. 16]
TO:

THE HONORABLE ALAN D ALBRIGHT
UNITED STATES DISTRICT JUDGE
This Report and Recommendation is submitted to the Court pursuant to 28 U.S.C. §

636(b)(1)(C), Fed. R. Civ. P. 72(b), and Rules 1(f) and 49b) of Appendix C of the Local Rules of
the United States District Court for the Western District of Texas, Local Rules for the Assignment
of Duties to United States Magistrate Judges. Before the Court is Defendant Richard Spencer’s
Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) filed on December 7, 2020 (ECF No. 9)
(the “Motion to Dismiss”) and Motion for Summary Judgment filed on September 2, 2021 (ECF
No. 16) (the “Summary Judgment Motion”).
After careful consideration of the Motion to Dismiss, the Parties’ briefs, and the applicable
law, the undersigned recommends the Motion to Dismiss be DENIED.
After careful consideration of the Summary Judgment Motion, the Parties’ briefs and
evidence, and the applicable law, the undersigned recommends the Summary Judgment Motion be
DENIED as to Plaintiff’s failure to accommodate claim and be GRANTED as to all of Plaintiff’s

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other claims.
I.
A.

DEFENDANT’S MOTION TO DISMISS

BACKGROUND
Plaintiff Camille Francis-Howard (“Plaintiff” or “Howard”) filed this lawsuit accusing

Defendant Richard Spencer, Secretary, Department of the United States Army (“Defendant” or
“Army”) of violations of Title VII of the Civil Rights Act of 1964 and Sections 501 and 505 of the
Rehabilitation Act of 1973. ECF No. 6 at 1. Defendant filed the Motion to Dismiss, alleging that
this Court lacks jurisdiction. ECF No. 9 at 1. Plaintiff filed an opposition to the Motion to Dismiss
on December 21, 2020 (ECF No. 12); a reply was filed on March 4, 2021 (ECF No. 14); and the
Court heard oral argument on June 27, 2022. Each party then submitted a supplemental
memorandum after the hearing. See ECF Nos. 26 & 27.
The Motion to Dismiss arrived at this Court without a final Army decision and without a
decision on the merits by the Equal Employment Opportunity Commission (“EEOC”). On August
29, 2016, Plaintiff filed a formal complaint for discrimination based on race, sex, and disability
(mental) regarding her non-selection for promotion with the Department of the United States
Army. ECF No. 6 ¶ 8. The Army issued a Report of Investigation (“ROI”) on February 2, 2017.
Id. The Army alleges that it advised Plaintiff of her two options—seek a final Army decision or
seek a hearing before an EEOC administrative law judge—and provided Plaintiff a form she could
use to request a final agency decision. ECF No. 9 at 1-2;ECF No. 9-1. Plaintiff alleges that she did
not seek a final agency decision but instead requested a formal hearing before an EEOC
administrative law judge on February 13, 2017. ECF No. 6 ¶ 8. Plaintiff contends that the EEOC
administrative law judge issued a decision without a hearing. Id.

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The Army counters that when it filed a motion for summary judgment before the EEOC,
Plaintiff failed to respond and indicated she would seek a final agency decision. ECF No. 9 at
2;ECF No. 9-4. Shortly after, the EEOC administrative law judge dismissed the case on April 10,
2019, indicating that Plaintiff requested a Final Agency Decision. ECF No. 9 at 2 & 9-2 at 2.
Finally on November 2, 2020, Plaintiff filed the present suit and alleged that she complied
with all procedural requirements. ECF No. 1 at 2–3.
The Motion to Dismiss is Defendant’s second motion to dismiss. Defendant filed a first
motion to dismiss on October 19, 2020. ECF No. 5. In response, Plaintiff filed her First Amended
Complaint on November 2, 2020. ECF No. 6. The First Amended Complaint mooted Defendant’s
first motion to dismiss, and on December 7, 2020, Defendant filed the present Motion to Dismiss.
ECF No. 9.
In the Motion to Dismiss, Defendant asserts several grounds it alleges justify dismissing
Plaintiff’s Amended Complaint. First, Defendant contends all of Plaintiff’s claims are time barred.
Second, Defendant contends that Plaintiff names the wrong defendant. Third and finally,
Defendant contends that Plaintiff failed to perfect proper service of the Defendant. Id.
For the following reasons, the Court recommends that the Motion to Dismiss be DENIED.
B.

LEGAL STANDARD
The law governing a motion to dismiss is well-settled. A court must dismiss a complaint if

it lacks subject matter jurisdiction. Willoughby v. U.S. ex rel. U.S. Dep’t of the Army, 730 F.3d
476, 479 (5th Cir. 2013). The plaintiff has the burden to show subject matter jurisdiction. Ramming
v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (citation omitted). The district court can dismiss
for lack of subject matter jurisdiction based on: “(1) the complaint alone; (2) the complaint

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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).
As no objections have been lodged against any of the exhibits to Defendant’s Motion, this
Court will consider all of the exhibits as true, correct, and establishing undisputed facts of those
facts cited in this Report and Recommendation.
The governing statute states who the proper defendant should be. When a plaintiff
commences an action under Title VII of the Civil Rights Act of 1964, she must name as the
defendant the current head of the executive agency that employs her. 42 U.S.C. § 2000e-16(c); 5
U.S.C. §§ 101, 105. If the plaintiff names the wrong defendant, the court may allow her to amend
her complaint and add the proper party. Fed. R. Civ. P. 15(a)(2). Under Rule 15(c), such an
amendment would relate back to the original filing date. Fed. R. Civ. P. 15(c). When an amendment
relates back to the original pleading, the plaintiff is deemed to have timely filed against the correct
defendant. Id.
Defendant’s Motion to Dismiss implicates Federal Rule of Civil Procedure 4.
Under Rule 4(m), if the defendant does not receive service within 90 days after the plaintiff files
the complaint, then the court must dismiss the action without prejudice. Fed. R. Civ. P. 4(m). If
the plaintiff shows good cause for the failure, however, then the court must extend the time for
service. Id. Even if the plaintiff fails to show good cause, the court may use its discretion to extend
time for service. Thompson v. Brown, 91 F.3d 20, 21 (5th Cir. 1996).
C.

ANALYSIS
1.

Whether Plaintiff Timely Tiled this Suit

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Defendant contends Plaintiff’s suit was untimely. Defendant argues that the EEOC’s order
of dismissal constitutes a final agency decision under 29 C.F.R. § 1614.109(i) (“[i]f an agency
does not issue a final order within 40 days of receipt of the administrative judge’s decision in
accordance with 1614.110, then the decision of the administrative judge shall become the final
action of the agency.”) Defendant contends that Plaintiff had ninety days from receipt of the final
action to file her complaint in this Court. 29 C.F.R. 1614.402(a).
Plaintiff contends that her request was timely. Plaintiff contends that she withdrew her
request for an EEOC hearing to obtain a final agency decision. ECF No. 12 at 3;ECF No. 12-1.
Plaintiff notes that the order of dismissal did not contain a decision on the merits nor notice of
Plaintiff’s time limit for filing an appeal or a civil action. Id. at 5; see also ECF No. 9-2 at 2.
Additionally, Plaintiff contends that the order for dismissal failed to inform her of the proper
defendant to name in a civil action. ECF No. 12 at 5. Plaintiff contends that these deficiencies
prevented the decision from qualifying as a final order or Final Agency Decision. Id. at 4–5.
Plaintiff concludes that she has yet to receive a Final Agency Decision, that no one entered a final
order within forty days of the administrative law judge’s decision, and therefore Plaintiff was
allowed to file this suit after 180 days had passed from the filing of the complaint with the agency.
Id. at 5; see also 29 C.F.R. § 1614.407(b).
In this case, there was no final decision on the merits. The timing requirements of 29 C.F.R.
§ 1614.110(a) imply that an administrative law judge will have decided the case on its merits;
otherwise, the agency would have nothing to “implement.” See Laudadio v. Johanns, 677
F.Supp.2d 590, 604 (E.D.N.Y. 2010). A dismissal of a claim upon a complainant’s request,
however, is not a decision on the merits. Id. Instead, a complainant who “withdraws his request

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for an EEOC hearing…‘effectively requests an ‘immediate final decision’ requiring the [a]gency
to issue a final decision with findings on the merits of each issue in the complaint.’” See id. (citing
Hunter v. Keisler, No. 06-CV-5908 (RBK), 2007 WL 3171223 at *4 (D.N.J. Oct. 26, 2007)).
Though the administrative law judge’s decision may become the final action of the agency if the
agency is inactive, it does not excuse the decision from complying with finality requirements. 29
C.F.R. § 1614.109(i); Laudadio, 677 F. Supp. 2d at 604. Allowing administrative law judge
decisions to automatically initiate the applicable statute of limitations without providing the
notices of 29 C.F.R. § 1614.110(a) frustrates the very purpose of the regulation. Staropoli v.
Donahoe, 786 F. Supp. 2d 384, 390 (D.D.C. 2011). The plain language of the Civil Rights statute
also confirms that plaintiffs are entitled to bring suit once 180 days have elapsed since their initial
complaint. 42 U.S.C. § 2000e-16(c); Munoz v. Aldridge, 894 F.2d 1489, 1492 (5th Cir. 1990).
The Court finds that Plaintiff’s Complaint was timely. Here, more than 180 days had passed
since Plaintiff filed her initial complaint. See ECF No. 6 at 3. The Court finds that since the EEOC
Oder of Dismissal failed to comply with the regulatory requirements. That failure prevented it
from being a Final Agency Decision and prevented the running of the applicable deadlines. The
Court further finds that more than 180days had elapsed between Plaintiff initiating her complaint
with Defendant and filing the present suit. Thus, Plaintiff’s suit was timely filed with this Court
and this Court recommends that portion of Defendant’s Motion to Dismiss should be DENIED.
2.

Whether Plaintiff’s Amended Complaint Should be Dismissed for Naming
the Wrong Defendant.
Next, Defendant’s Motion to Dismiss asserts that the Amended Complaint should be

dismissed for naming the wrong Defendant. Defendant contends that a discrimination suit under

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Title VII of the Civil Rights Act of 1964—such as Plaintiff’s Amended Complaint asserts—
requires Plaintiff to name the current head of the Department of the Army as the defendant. ECF
No. 9 at 3 (citing 42 U.S.C. § 2000e-16(c); 5 U.S.C. §§ 101, 105). As Plaintiff named Richard
Spencer, the former Secretary of the Navy, and not Ryan McCarthy, the current Secretary of the
Army, Defendant contends Plaintiff’s Amended Complaint should be dismissed. Defendant further
cites Cummings v. U.S. Postal Serv., Case No. 09-C-502, 2009 WL 2383857, at *2 (E.D. Wis. July
31, 2009) as support for its argument.
Plaintiff makes no substantive argument in response, but rather seeks leave to amend her
complaint. Plaintiff contends that any failure on her part to correctly identify the Secretary of the
Army was caused by Defendant. Plaintiff contends that Defendant failed to comply with 29 C.F.R.
section 1614.110(a). ECF No. 12 at 11; see also 29 C.F.R. § 1614.110(a) (requiring a final order
to include “the name of the proper defendant.”).
The Court concludes that Plaintiff’s request to amend should be granted. Plaintiff’s
Original and Amended Complaint properly identified the Defendant as “Secretary, Department of
the Army.” ECF No. 1; ECF No. 6. The error complained of by Defendant is that the Secretary of
the Army was misnamed as Richard Spencer rather than Ryan McCarthy. ECF No. 9 at 3. The
applicable statute, however, only states that “the head of the department, agency, or unit, as
appropriate, shall be the defendant.” 42 U.S.C. § 2000e-16(c). Plaintiff complied with this
provision by identifying the Secretary, Department of the Army as the defendant, but misnamed
the specific individual. This appears to be a misnomer—where the correct party is sued but is
misnamed in the complaint. Such a misnomer is correctable by amendment. See Fed. R. Civ. P.
15(c) and Advisory Notes.

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The Cummings case cited by Defendant aligns with this conclusion. In Cummings, the
plaintiff named “United States Postal Service, c/o Tim Lewis, Postmaster, Green Bay, Wisconsin”
as the defendant. Cummings, 20009 WL 2383857at *2. As the statute required the defendant to be
the Postmaster General in his official capacity, the plaintiff had named the wrong defendant. Id.
The Cummings court noted that the plaintiff could have sought leave to amend and name the proper
defendant, but he did not. Cummings, 2009 WL 2383857 at *3. Unlike the plaintiff in Cummings,
Plaintiff here has sought such leave to amend as part of responding to Defendant’s Motion. ECF
No. 12 at 12–13. Thus, the Court recommends that Defendant’s Motion to Dismiss on this ground
be DENIED and Plaintiff’s request to file her Second Amended Complaint be GRANTED.
3.

Whether Plaintiff’s Amended Complaint Should be Dismissed for Improper
Service of Process.
Defendant contends that Plaintiff failed to properly serve Defendant, justifying dismissal

of Plaintiff’s case. Citing Federal Rule of Civil Procedure 4(i)(2), Defendant contends that Plaintiff
is required to serve the United States Attorney and send copies of the summons and complaint by
registered or certified mail to the officer and to the Attorney General. ECF No. 9 at 3–4 (citing
Fed. R. Civ. P. 4(i)(2); 28 U.S.C. § 1391(e)(3)). Defendant contends that Plaintiff’s failure to
comply with these mandatory provisions requires dismissal of Plaintiff’s case. Id.
Plaintiff argues that she properly served the Army. She contends that “she illustrated a
good faith effort to serve the Department of the Army and the United States Attorney General even
though the complaint misnamed the acting secretary.” ECF No. 12 at 11 (citing ECF No. 12-4).
Additionally, Plaintiff requested leave to amend her complaint to cure any alleged defects in
service identified by the Defendant. Id. at 13 (citing ECF No. 12-5). Finally, Plaintiff contends that

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she has complied with all the service requirements by mailing a copy of the summons by United
States Postal Service certified mail to the Department of the Army and to the Attorney General as
evidenced by ECF No. 25. ECF No. 26 at 1.
The Court finds that Plaintiff has properly effected service. Plaintiff’s Amended Complaint
clearly indicates that her suit is against the Department of the Army. ECF No. 6 (naming the
Department of the Army as the defendant and describing the defendant “as a government.”); see
also ECF No. 26 at 1 (describing the elements a plaintiff must satisfy when suing a United States
agency). Under Federal Rule of Civil Procedure 4(i)(2) for a lawsuit against a United States
agency, the plaintiff must serve the United States and send a copy of the summons and complaint
by registered mail to the agency. See Fed. R. Civ. P. 4(i)(2) (“a party must serve the United States
and also send a copy of the summons and of the complaint by registered or certified mail to the
agency”). Plaintiff has provided evidence of having satisfied these requirements. See ECF No. 26
at 1 & ECF No. 25 While there has been an exceptional delay in providing proof of such service—
suit was filed in March of 2020 and the return of summons evidence was filed in July 2022—the
Court recommends exercising its discretion and permitting such dilatory service to stand. Thrasher
v. City of Amarillo, 709 F.3d 509, 511 (5th Cir. 2013) (noting that a court has discretion to extend
the time for service even in the absence of good cause). Therefore, it is the recommendation of this
Court that Defendant’s Motion to Dismiss based on improper service be DENIED.
II.

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Next, we turn to Defendant’s Motion for Summary Judgment. ECF No. 16.Defendant
asserts three reasons it is entitled it to summary judgment. First, Defendant contends there is no
evidence to demonstrate or support a finding that much of the complained of conduct—Door

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Incidents, Telework Modifications, and Workspace Relocation—amounted to an adverse
employment action. ECF No. 16 at 5. Second, Defendant contends that Plaintiff has allegedly
failed to present any evidence to raise a fact question about whether Defendant’s legitimate,
nondiscriminatory reason for the complained of non-selection was merely a pretext for racial
discrimination. Id. at 5–7. Third, Defendant contends that there is no evidence to support Plaintiff’s
failure to accommodate claim because the evidence fails to demonstrate Plaintiff suffered a
disability and that Defendant failed to offer Plaintiff a reasonable accommodation, even though it
was not Plaintiff’s preferred accommodation. Id. at 8–11. Finally, Defendant contends that for
similar reasons Plaintiff cannot raise a fact question about Defendant’s legitimate,
nondiscriminatory reason for the complained of non-selection was merely a pretext for unlawful
retaliation. Id. at 12–13.
The Court will address each in turn and for the reasons stated below, the Court recommends
that Defendant’s Motion for Summary Judgment be GRANTED as to all of Plaintiff’s claims,
except her failure to accommodate claim, for which the Court recommends Defendant’s Motion
for Summary Judgment be DENIED.
A.

LEGAL STANDARD
Federal Rule of Civil Procedure 56 provides that “[t]he 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). The burden applies initially to the
Defendant, and if Defendant carries this burden, it shifts to Plaintiff, who must provide specific
evidence to show the existence of a genuine issue for trial. Morris v. Covan World Wide Moving,
Inc., 144 F.3d 377, 380 (5th Cir. 1998). In evaluating Defendant’s Summary Judgment Motion,

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the Court will indulge all reasonable inferences in the light most favorable to Plaintiff. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 106 S. Ct. 1348, 1356 (1986).
B.

DISCUSSION
1.

Whether There are Triable Issues of Fact as to Howard’s Race
Discrimination Claim.
Plaintiff’s race discrimination claim is evaluated under the 3-part framework defined in

McDonnell Douglas. That framework requires that “(1) the plaintiff must first establish a prima
facie case of discrimination; (2) the burden then shifts to the defendant to provide a legitimate,
nondiscriminatory reason for the employment action; and if that burden is satisfied, (3) the plaintiff
must offer evidence that the proffered reason is a pretext for racial discrimination.” Knatt v. Hosp.
Serv. Dist. No. 1 of E. Baton Rouge Par., 327 F. App’x 472, 482 (5th Cir. 2009).
To satisfy the first element—a prima facie case of race discrimination—Plaintiff must
present evidence of several factors. Plaintiff must show that she “(1) is a member of a protected
class; (2) was qualified for the 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 other similarly situated employees were treated more favorably.” Bryan v. McKinsey & Co.,
375 F.3d 358, 360 (5th Cir. 2004) (citing Okoye v. Univ. of Texas Houston Health Sci. Ctr., 245
F.3d 507, 512 (5th Cir.2001)).
There appears to be no dispute about the first two elements. The parties appear to agree—
or at least for the purposes of summary judgment, they do not dispute—that Plaintiff was a member
of a protected class. There also appears to be no dispute that she was qualified for her position.
The first dispute, however, is whether Plaintiff was subject to adverse employment actions.

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Plaintiff’s Complaint alleges several specific actions that she describes as adverse. ECF No. 6 at
3–5. These include a supervisor preventing her from closing her office door, prohibiting Plaintiff
from sitting near an open door in meetings, partially denying Plaintiff’s telework request,
relocating Plaintiff from a private office to an open workspace, and passing over Plaintiff for a
promotion. ECF No. 16 at 2.
Of this conduct, only the non-promotion qualifies as an adverse employment event under
Fifth Circuit law. See McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007); Pegram v.
Honeywell, Inc., 361 F.3d 272, 282 (5th Cir. 2004). Actions that do not affect job duties,
compensation, or benefits are not adverse actions that would support a discrimination case.
Pegram, 361 F.3d at 282. The door incidents, which include preventing Plaintiff from closing her
office door or sitting near the door at meetings, the denial of the telework request, and the
relocation of Plaintiff’s office do not satisfy the standard required to be adverse employment
actions. For that reason, the Court recommends that Defendant’s Summary Judgment Motion on
Plaintiff’s race discrimination claim based on these events should be GRANTED.
As the Court finds that the non-promotion does qualify as an adverse employment event,
Plaintiff is required to present a prima facie case of racial discrimination. A prima facie case of
discrimination requires Plaintiff to prove that “(1) she was within a protected class; (2) she was
qualified for the position sought; (3) she was not promoted; and (4) the position she sought was
filled by someone outside the protected class.” Blow v. City of San Antonio, Tex., 236 F.3d 293,
296 (5th Cir. 2001); see also, Bryan, 375 F.3d at 360. Under the McDonnell Douglas framework,
if Plaintiff can establish a prima facia case of discrimination the burden shifts to Defendant to
provide a legitimate, nondiscriminatory reason for the non-promotion. If such a reason is

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presented, Plaintiff is required to present evidence raising a fact question about the proffered
reason being a pretext for racial discrimination. See Knatt, 327 F. App’x at 482.
Evidence of pretext requires more than Plaintiff’s mere denial of Defendant’s legitimate,
nondiscriminatory reason. To raise a fact question concerning pretext, Plaintiff must present
“substantial evidence indicating that the proffered legitimate nondiscriminatory reason is a pretext
for discrimination.” Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003) (citing Reeves v.
Sanderson Plumbing Prods., 530 U.S. 133, 142(2000)). Substantial evidence exists “if it is of such
quality and weight that reasonable and fair-minded men in the exercise of impartial judgment
might reach different conclusions.” Brown v. Wal-Mart Stores East, L.P., 969 F.3d 571, 577 (5th
Cir. 2020)(citing Musser v. Paul Quinn Coll., 944 F.3d 557, 561 (5th Cir. 2019). For example,
evidence that the employer’s non-discriminatory reason has changed over time can demonstrate
pretext. See Burrell v. Dr. Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408, 415 (5th Cir. 2007).
Similarly, evidence of derogatory or discriminatory comments can raise a fact question about
pretext. Goudeau v. National Oilwell Varco, L.P., 793 F.3d 470, 476 (5th Cir. 2015).
Plaintiff’s non-promotion based racial discrimination claim fails for two reasons. First,
Plaintiff fails to present sufficient evidence to survive summary judgment regarding whether she
was “similarly situated” to the chosen candidate. Second, Plaintiff fails to present sufficient
evidence to raise a fact question about whether Defendant’s proffered reason was a pretext.
Plaintiff has failed to raise a fact question regarding whether she was similarly situated to
the chosen candidate. To be considered “similarly situated” to the other employee—the one chosen
for the position—Plaintiff must prove that her qualifications were nearly identical to the chosen
employee. Lazarou v. Mississippi State Univ., 549 F. App’x 275, 281–282 (5th Cir. 2013);

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Atterberry v. City of Laurel, 401 Fed. App’x 869, 871 (5th Cir. 2010). Plaintiff is unable to muster
such evidence.
Defendant has presented substantial evidence that the person chosen for the promotion was
much more qualified than Plaintiff. See ECF No. 16-1 at 124:11 (Davis was the decision-maker),
133:13-134:20 (describing the qualifications of the chosen candidate). The selecting officer
testified that the chosen candidate had consistently exceeded standards, had been recognized for
her attention to detail, had a bachelor’s degree in accounting, was a certified financial manager—
a certification beyond the required certification, had handled two separate directorate budgets, and
had received “excellence” ratings in her performance evaluations for the preceding two years. Id.
at 133:13-136:4. Alternatively, the selecting officer testified that Plaintiff had received
“successful” evaluations during the same time period and “does not do much to excel.” Id. 135:22136:8. The selecting officer testified that out of three applicants, Plaintiff ranked third. Id. 135:1213.
Plaintiff’s evidence demonstrates that she was not similarly situated to the chosen
candidate. Plaintiff presented evidence that she also held a financial manager certification and had
handled more than two budgets. ECF No. 19 at 6; ECF No.20-1 ¶ 2. Plaintiff failed, however, to
demonstrate that those budgets were equivalent to “directorate budgets” identified by the selecting
officer, that she held the equivalent of a bachelor’s degree in accounting, or that she had additional,
not-required certifications. Plaintiff also failed to address her “successful” rather than “excellence”
evaluation ratings. See ECF No. 19 at 6. Without such proof, Plaintiff cannot raise a fact question
regarding whether she was similarly situated or nearly identical to the chosen candidate. Thus,
Plaintiff has failed to raise a fact question about whether she was similarly situated to the chosen

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candidate. See Atterberry, 401 F. App’x at 870 (noting that similarly situated requires proof
suggesting that the two employees were nearly identical.).
The Court finds that Plaintiff failed to raise a fact question about whether she was similarly
situated to the chosen employee. Thus, the Court recommends that Defendant’s Summary
Judgment Motion directed to Plaintiff’s non-promotion based racial discrimination claim should
be GRANTED for failure to prove she was similarly situated to the chosen candidate.
Additionally, Plaintiff has failed to present evidence sufficient to raise a fact question about
whether Defendant’s proffered non-discriminatory reason is a pretext. To raise a fact question
regarding pretext, Plaintiff must offer substantial evidence showing Defendant’s proffered, nondiscriminatory reason is false. Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003) (citing Reeves
v. Sanderson Plumbing Prods., 120 S.Ct. 2097, 2106 (2000)). Substantial evidence exists if it is
such that “reasonable and fair-minded men in the exercise of impartial judgment might reach
different conclusions.” Brown v. Wal-Mart Stores East, L.P., 969 F.3d 571, 577 (5th Cir.
2020)(citing Musser v. Paul Quinn Coll., 944 F.3d 557, 561 (5th Cir. 2019). While Plaintiff claims
“this case has mendacity in spades,” the only actual evidence cited by Plaintiff is that Plaintiff had
her financial manager certification at the time of non-promotion and that she had handled more
than two separate budgets consisting of overseas budgets, reverse budgets, and Title 10 budgets.
ECF No. 19 at 6; ECF No.20-1 ¶ 2. While it is unclear what Exhibit C (ECF No. 20-3) is, the Court
presumes Plaintiff contends that Exhibit C (ECF No. 20-3) demonstrates that Plaintiff held the
same financial manager certification as the chosen candidate. At this summary judgment stage, the
Court will indulge that inference in Plaintiff’s favor. Plaintiff’s declaration (ECF No. 20-1) also
confirms that Plaintiff had her financial manager certification by January 15, 2016 and had

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managed and oversaw the referenced budgets. ECF No. 20-1 ¶ 2.
As Defendant points out, however, the non-selection was based on many additional
factors—not just a certification and number of budgets managed. If those were the only reason
stated by the selecting officer for his decision, Plaintiff might have raised a fact question, but the
selecting officer testified that he selected the other candidate because that candidate—Seymour—
had many additional qualifications Plaintiff did not. He testified that the chosen candidate had
consistently exceeded standards, had been recognized for her attention to detail, had a bachelor’s
degree in accounting, was a certified financial manager, had handled two separate directorate
budgets, and had received “excellence” ratings in her performance evaluation for the preceding
two years. ECF No. 16-1 at 124:11, 133:13-136:4.
At best Plaintiff has presented evidence showing she met two of these qualifications—
certified financial manager and handled two budgets. Plaintiff failed to present evidence that she
met any of the other qualifications stated by the selecting officer. Contrary to Plaintiff’s
characterization in her brief, Plaintiff’s evidence that she held only two of the many qualities
identified for the selected candidate does not demonstrate Defendant’s stated reasons are false.
There is no evidence of Defendant claiming Plaintiff failed to hold the certification she claims or
that she did not manage multiple budgets. Rather, the evidence demonstrates the chosen candidate
held additional qualifications that Plaintiff did not. Defendant points to evidence that the
certifications held by Plaintiff and the person selected are different and that the person selected
had an additional financial management certification that Plaintiff did not have. ECF No. 21 at 5
(citing ECF No. 20-4 at 23:09-22, 25:06-13, 133:13-134:20). It was this non-mandatory
certification that was identified by the selecting officer. ECF No. 16-1 at 5, 134:11-13 (“she is

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certified as a financial manager. Even though it’s not a requirement, it’s highly encouraged.”)
Similarly, the selecting officer noted that the person chosen for the position had managed “two
separate directorate’s budgets.” Id. at 134:06. Plaintiff did not present evidence that she had
managed multiple directorate’s budgets. If these were the only criteria cited by Defendant, Plaintiff
might have raised a fact question, but as noted above, these were just two of many reasons given
for Plaintiff’s non-selection.
Plaintiff has failed to demonstrate a fact question about Defendant’s stated reasons being
false or in any other way impugning Defendant’s non-discriminatory reason. Plaintiff has
presented no evidence of Defendant’s reason changing, of derogatory comments by Defendant, or
any other evidence that would raise a fact question concerning the truth of Defendant’s nondiscriminatory race neutral reason for not selecting Plaintiff.
Plaintiff’s failure to raise a fact question regarding pretext is bolstered by Plaintiff’s failure
to address the fact that the selecting officer shares Plaintiff’s race. As noted by Defendant, the
selecting officer also identifies as Black. ECF No. 16-1 at 1, 115:15-16. Several courts have noted
that if the evidence that if Plaintiff and the person making the employment decision share the same
race, that evidence undercuts any inference of discrimination. See Udoewa v. Plus4 Credit Union,
754 F. Supp. 2d 850, 873 (S.D. Tex. 2010) (granting summary judgment on racial discrimination
claim); see also Boice v. Se. Penn. Transp. Authority, No. 05–4772, 2007 WL 2916188, at *10
(E.D. Pa. Oct. 5, 2007); Rhodes v. Runyon, No. Civ. A. 494CV125DD, 1995 WL 1945558, at *5
(N.D. Miss. Nov. 1, 1995). Had Plaintiff been able to raise any inference or fact question of
discrimination, these cases would undercut such an inference. As Plaintiff has failed to raise such
a fact question, these cases further enforce the lack of any fact question regarding discrimination.

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The Court concludes that Plaintiff has failed to raise a fact question about pretext on her
race discrimination claim, which creates an additional reason Defendant’s Summary Judgment
Motion on Plaintiff’s racial discrimination claim should be GRANTED.
2.

Howard’s Failure to Accommodate and Disability Discrimination Claims.
Under Plaintiff’s failure to accommodate claim, Plaintiff must satisfy three elements. She

must prove (1) that she is a qualified individual with a disability; (2) that her disability and its
consequential limitations were known by her employer; and (3) that her employer failed to make
reasonable accommodations for her limitations. Feist v. La. Dep’t of Justice, Office of the Att’y
Gen., 740 F.3d 450, 452 (5th Cir. 2013). To meet these requirements, Plaintiff must prove that she
had a disability under the statute. That requires proof that Plaintiff suffered from “a physical or
mental impairment that substantially limits one or more of the major life activities of [an]
individual,” or that she was “regarded as having such an impairment,” 42 U.S.C. §§ 12102(1)(A),
12102(1)(C); see also 29 U.S.C. § 705(9)(B). Notably, to be regarded as having such an
impairment, Plaintiff must prove that “she has been subjected to an action prohibited under this
chapter because of an actual or perceived physical or mental impairment whether or not the
impairment limits or is perceived to limit a major life activity,” but this “shall not apply to
impairments that are transitory and minor. A transitory impairment is an impairment with an actual
or expected duration of 6 months or less.” 42 U.S.C. § 12102(3).
Defendant asserts two bases allegedly entitling it to summary judgment regarding the
alleged failure to accommodate. First, Defendant contends that while Plaintiff has demonstrated
her migraines can be “severe and extremely intrusive,” she has not provided proof that they
“substantially impair any of her major life activities.” ECF No. 16 at 8 (citing Hyder v. City of

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Austin, No. A-04-CA-690-LY, 2007 WL 9701632, at *4 (W.D. Tex. May 24, 2007). Second, the
evidence shows that Defendant did provide an accommodation—it just was not Plaintiff’s
preferred accommodation. Id. at 9.
a.

Existence of a Disability Under the Statute.

To raise a fact question about her alleged disability, Plaintiff has to demonstrate that she
satisfies the statute. She can either show that she suffered a disability “that substantially limits one
or more major life activities” as defined by the statute. 42 U.S.C. § 12102(1)(A). Plaintiff can also
raise a question about having a disability by showing that she was “regarded as having such an
impairment,” and was subjected to prohibited conduct because of that perception of the
impairment. 42 U.S.C. §§ 12102(1)(C) & (3)(A).
Plaintiff has presented sufficient evidence to demonstrate that she either had a disability or
was regarded as having a disability. 1 Plaintiff has identified testimony that acknowledges
Defendant was aware that Plaintiff had a doctor’s note stating Plaintiff had migraines and needed
to be able to control her environment. ECF No. 20-4 at 184 (184:04-15). Plaintiff has also provided
evidence of two doctors notes describing her alleged disability. ECF No. 20-2 at 10-11. Plaintiff
also presented evidence that she received a reasonable accommodation based on her alleged
disability in July of 2016. See ECF No. 20-6. Additionally, Plaintiff presented evidence that in

1

The Court notes that Plaintiff pointed to Exhibit D (ECF No. 20-4) but failed to provide pin-cites
that would allow the Court to easily locate her evidence. See ECF No. 19 at 8 (citing “Ex. D”).
Exhibit D is a 273-page document, and if Plaintiff is unwilling to direct the Court to specific cites
in the exhibit, the Court will not undertake such a hunt. As, Plaintiff highlighted portions of Exhibit
D, the Court will not hold her attorney’s lack of pin-cites against her but will review the highlighted
portions of Exhibit D.
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August of 2016, she sought an additional accommodation based on the alleged disability, and
Defendant denied the request in December of 2016. ECF No. 20-2 at 12. Plaintiff’s evidence
demonstrates that in August of 2016, Plaintiff’s doctor described her condition as “chronic
prostrating intractable migraine[s].” Id. at 11. It is this Court’s belief that Plaintiff’s evidence has
raised a fact question concerning the existence of a “disability” as required by the statute. As such,
the Court recommends that Defendant’s Summary Judgment Motion based on Plaintiff lacking a
qualified disability be DENIED.
3.

Plaintiff’s Claim of Failure to Accommodate.

Having determined a fact question exists regarding Plaintiff’s disability, the Court next
addresses whether Plaintiff has raised a fact question concerning Defendant’s alleged failure to
accommodate her disability.
The evidence demonstrates the existence of a fact question concerning whether Defendant
failed to provide a reasonable accommodation. The evidence demonstrates that Plaintiff made two
requests for a reasonable accommodation—one on May 12, 2016, and one on August 11, 2016.
ECF Nos. 20-6 & 20-2. The May 12, 2016, accommodation request resulted in Plaintiff receiving
several reasonable accommodations—permitting her to close her office door on occasion, allowing
her to sit near the door in meetings on occasion, and allowing her to work remotely two days a
week. ECF No. 16-2 at 10-11 (188:03–12; 188:18–189:09); ECF No. 16-3. While Defendant points
to these accommodations, all of these occurred on or before July 2016, and none were in response
to the August 2016 request.
Defendant fails to address all of Plaintiff’s evidence and specifically her later request for
an accommodation. Defendant notes that it provided Plaintiff an accommodation. However, all of

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the accommodations were provided on or before July 7, 2016. See ECF No. 16-2 at 10–11 (188:03–
12; 188:18–189:09); ECF No. 16-3. In December of 2016, however, Defendant apparently
determined that it could provide absolutely no accommodations to Plaintiff. See ECF No. 20-2 at
12 (“In light of these increasing obstacles to your ability to safely & accurately perform your
duties, I cannot identify any reasonable accommodation.”). Additionally, Defendant’s witness
testified that the earlier seating accommodation—i.e., permitting Plaintiff to sit near the door
during meetings—was because Plaintiff often entered meetings after all the seats were taken and
not because of a medical reason. See ECF No. 16-2 at 10 (188:03-12). Defendant made no attempt
to address the December 2016 decision to deny Plaintiff any accommodation at all. As such, the
present situation is distinguishable from the cases cited by Defendant where Plaintiff did not agree
with the accommodation. See Jennings v. Towers Watson, 11 F.4th 335, 344 (5th Cir. 2021);
Jackson v. Brennan, No. CV H-18-1281, 2019 WL 5964508, at *8 (S.D. Tex. Nov. 13, 2019);
Feist v. Louisiana, No. CIV.A. 09-7060, 2014 WL 2979623, at *3 (E.D. La. July 1, 2014).
Additionally, considering the complete denial of any accommodation on December 19, 2016,
combined with Defendant’s failure to address that evidence creates a reasonable inference that
Defendant failed to provide Plaintiff with a reasonable accommodation or to engage in an
interactive process to find such an accommodation.
The Court also finds that there is conflicting evidence—sufficient to survive summary
judgment—as to whether the Defendant failed to provide a reasonable accommodation. While
Defendant granted a modified accommodation in July 2016, in December of 2016, Defendant
denied any requested modification. Compare ECF No. 16-3 with 20-2 at 3 (Box 18) & 12.
Indulging all reasonable inferences in Plaintiff’s favor and in light of the conflict between the July

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2016 and December 2016 Requests for Reasonable Accommodation, the Court believes a material
question of fact exists. Therefore, this Court recommends that Defendant’s Summary Judgment
Motion on Plaintiff’s failure to accommodate claim be DENIED.
4.

Disparate Treatment Disability Discrimination

As the pleadings were unclear about whether Plaintiff is asserting a disparate treatment
claim, Defendant moved for summary judgment on any such claim. Defendant’s arguments in
support of such a motion are duplicative of those raised in response to the failure to accommodate
claim and the retaliation claim. See ECF No. 11-12. Nowhere in her response, however, does
Plaintiff contest this portion of Defendant’s Motion for Summary Judgment or assert a disparate
treatment disability discrimination claim.
To the extent Plaintiff is asserting a claim for disparate treatment because of her disability,
she has failed to raise a fact question concerning such a claim, and this Court recommends that
Defendant’s Summary Judgment Motion on that claim be GRANTED.
5.

Plaintiff’s Claim of Retaliation for a Protected Activity

As noted above, Plaintiff has raised a fact question concerning whether she suffered from
a disability.
As also noted above, Plaintiff, has failed to present sufficient evidence of an adverse
employment action beyond the non-promotion, which is addressed below. None of the other
conduct—the door incident, telework denial, and office relocation—qualifies as an adverse
employment action under the racial discrimination or retaliation claims. To the extent Plaintiff
attempts to assert a retaliation claim based on these actions, this Court recommends that
Defendant’s Summary Judgment Motion be GRANTED.

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This leaves only Plaintiff’s retaliation claim based on her non-promotion for seeking a
reasonable accommodation. Such a claim requires proof of three elements: (1) that Plaintiff
engaged in a protected activity; (2) that she suffered an adverse employment decision or action;
and (3) that there is a causal link between the protected activity and the adverse employment
decision or action. Goudeau v. Nat’l Oilwell Varco, L.P., 793 F.3d 470, 478 (5th Cir. 2015)
(quoting Medina v. Ramsey Steel Co., 238 F.3d 674, 684 (5th Cir .2001)). To be an adverse action,
the action “must be harmful to the point that they could well dissuade a reasonable worker from
making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53, 57 (2006).
As with discrimination claims, courts employ the McDonnell Douglas burden shifting
framework to analyze Title VII retaliation claims. Thus, if an employee establishes a prima facia
case, the employer then has the burden to “state a legitimate, non-retaliatory reason” for the action.
Once that is done, the burden shifts back to the employee “to demonstrate that the employer’s
reason is actually a pretext for retaliation.” LeMaire v. Louisiana Dep't of Transp. & Dev., 480
F.3d 383, 388–89 (5th Cir. 2007) (internal citations omitted).
Plaintiff has raised a fact question regarding whether she engaged in a protected activity.
Defendant does not appear to contest whether Plaintiff has met this claim element. Additionally,
the summary judgment record contains two requests for a reasonable accommodation by Plaintiff.
ECF Nos. 16-3 & 20-2. Thus, Plaintiff has raised a fact question concerning the first required
element for a retaliation claim.
The summary judgment evidence supports a fact question regarding the second element of
a retaliation claim—that Plaintiff suffered an adverse employment decision. As discussed above,

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Plaintiff’s evidence related to the door incidents, office relocation, and telework modification are
not adverse employment actions that would support a discrimination or retaliation claim. As also
discussed above, however, Plaintiff’s non-promotion does qualify as an adverse employment
action. Thus, Plaintiff has raised a fact question regarding the second required element of a
retaliation claim—that she suffered an adverse employment action.
Plaintiff’s retaliation claim fails, however, to raise a fact question concerning the final
required element in light of the McDonnell Douglas burden shifting framework.
Plaintiff contends that the timing of her non-promotion in light of her request for
accommodation raise a fact question about causation. Plaintiff points to the accommodation
request that she submitted on May 12, 2016, just eleven days before she applied for the Financial
Management Analyst position. ECF No. 19 at 14 (citing ECF Nos. 20-6 & 20-7). Another
employee was hired for that position on June 26, 2016—approximately six weeks after Plaintiff
submitted her request for accommodation. See ECF Nos. 20-6 (May 12, 2016 Request for
Accommodation) & 20-7 (Notification of Personnel Action promoting Seymour on June 26, 2016).
If this were all the evidence presented, it might raise a fact question by the slimmest of margins,
but it is not the end of the inquiry.
Defendant responded to Plaintiff’s alleged timing evidence with a legitimate, nonretaliatory reason. As discussed at length above, Defendant presented evidence that Plaintiff was
not selected for the position because she ranked third out of three candidates and that the candidate
chosen for the position held several qualifications that Plaintiff lacked—the chosen candidate
consistently exceeded standards, had been recognized for her attention to detail, had a bachelor’s
degree in accounting, held an additional unrequired certification, had handled two separate

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directorate budgets, and had received “excellence” ratings in her performance evaluation for the
preceding two years. ECF No. 16-1 at 124:11, 133:13–136:4. Under the McDonnell Douglas
framework, this demonstrated evidence of a legitimate, non-retaliatory reason to which Plaintiff
must respond with evidence of a pretext.
Plaintiff failed to raise a fact question about whether the legitimate non-retaliatory reason
was a pretext. As Plaintiff’s brief notes, a plaintiff can raise a fact question of pretext through
evidence of disparate treatment, clearly better qualifications, or that Defendant’s explanation is
not credible. ECF No. 19 at 5, 15 (citing Burrell v. Dr. Pepper/Seven Up Bottling Grp., Inc., 482
F.3d 408, 412 (5th Cir. 2007) and Haire v. Board of Supervisors of La. State Univ. Agric. & Mech.
Coll., 719 F.3d 356, 363 (5th Cir. 2013)). As noted above in discussing the racial discrimination
claim, Plaintiff has failed to present sufficient evidence of pretext regarding her qualifications
compared to the chosen candidate. The only additional evidence cited by Plaintiff is the timing of
her request for accommodation and her non-selection. ECF No. 19 at 14. While the cases cited by
Plaintiff support the use of timing to create an inference of causation, that inference only helps a
Plaintiff establish a prima facie case. See Swanson v. Gen. Serves. Admin., 110 F.3d 1180, 1188
(5th Cir. 1997). Once the prima facie case is established and Defendant has presented a legitimate,
non-retaliatory reason for the adverse employment decision, Plaintiff cannot rely on the inference
but must present evidence to support a fact question regarding pretext. Id.; see also Evans v. City
of Houston, 246 F.3d 344, 354 (5th Cir. 2001) (allowing the timing to support a prima facie case
but noting that timing and significant additional evidence supported a fact question on pretext).
Plaintiff has failed to present significant—or any—evidence beyond the timing to support her
allegation of pretext. See ECF No. 19 at 14-15.

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Plaintiff also failed to respond to the fact that Defendant’s decision-maker also was a 100percent disabled veteran. Defendant’s evidence demonstrates that the selecting officer identified
as Black and is a disabled veteran. 16-1 at 5 (131:20-24). While the Fifth Circuit Court of Appeals
does not appear to have addressed this issue, this Court finds the case cited by Defendant
persuasive, and finds that the selecting officer’s condition to be an additional factor that “is
consistent with the conclusion that no fact issue as to pretext is present.”. See Udoewa, 754 F.
Supp. 2d at 873.
Considering the foregoing, this Court finds that Plaintiff has failed to present sufficient
evidence to raise a fact question regarding pretext, and therefore, recommends that Defendant’s
Summary Judgment Motion on Plaintiff’s retaliation claim be GRANTED.
III.

RECOMMENDATION

In conclusion, this Court finds that Plaintiff has failed to raise a fact question on all of her
claims except her claim of failure to accommodate. Therefore, the Court recommends that
Defendant’s Motion for Summary Judgment be DENIED only as to Plaintiff’s claim of a failure
to provide a reasonable accommodation and should be GRANTED as to all of Plaintiff’s race
discrimination claims, disability discrimination based on disparate treatment claims, and
retaliation for a protected activity claims.
IV.

OBJECTIONS

The parties may wish to file objections to this Report and Recommendation. Parties filing
objections must specifically identify those findings or recommendations to which they object. The
District Court need not consider frivolous, conclusive, or general objections. See Battle v. U.S.
Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).

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A party’s failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the
Report shall bar that party from de novo review by the District Court of the proposed findings and
recommendations in the Report. See 28 U.S.C. § 636(b)(1)(C); Thomas v Arn, 474 U.S. 140, 150–
53 (1985); Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc). Except
upon grounds of plain error, failing to object shall further bar the party from appellate review of
unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See
28 U.S.C. § 636(b)(1)(C); Thomas, 474 U.S. at 150–53; Douglass, 79 F.3d at 1415.
SIGNED this 5th day of December, 2022.
____________________________________
DEREK T. GILLILAND
UNITED STATES MAGISTRATE JUDGE

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