Bryand v. Martin County, Texas

Filing 23

ORDER GRANTING IN PART judgment on her claims for failure to provide reasonable accommodation, discrimination on the basis of sex, and discrimination on the basis of age. AND DENYING IN PART summary judgment on Plaintiffs claim that she was terminated on the basis of her perceived disability 12 Motion for Summary Judgment Signed by Judge David A. Ezra. (sm)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
MIDLAND-ODESSA DIVISION
TINA BRYAND,

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Plaintiff,
vs.
MARTIN COUNTY, TEXAS,
Defendant.
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CV No. 7:14-CV-23-DAE

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
Before the Court is a Motion for Summary Judgment filed by
Defendant Martin County, Texas (“Defendant” or “Martin County”) (Dkt. # 12).
The Court held a hearing on the Motion on May 13, 2015. At the hearing, Holly
Williams, Esq., represented Plaintiff Tina Bryand (“Plaintiff”), and Jamie Guidry,
Esq., represented Defendant. After careful consideration of the supporting and
opposing memoranda and the arguments presented at the hearing, and for the
reasons given below, the Court GRANTS IN PART AND DENIES IN PART
Defendant’s Motion for Summary Judgment.

1

BACKGROUND
This case arises out of Plaintiff’s employment with Martin County,
where she worked as a 911 dispatcher and jailer from 1990 to 2012. (“Bryand
Dep.,” Dkt. # 12-3, Ex. C at 12:21–22; Ex. F.) As the county’s daytime 911
dispatcher, Plaintiff’s duties included answering all calls on the 911 system
reporting emergency and non-emergency situations, providing support to callers
during emergency and traumatic events, dispatching the correct resources to
emergency situations, performing records management, and entering data into state
and national law enforcement databases. (Dkt. # 12-17, Ex. Q at 1.) As the
daytime jailer, Plaintiff was responsible for supervising prisoners, performing patdown searches of prisoners, and maintaining accurate arrest and identification
records, among other duties. (Id. at 3.)
In 2004, Plaintiff began suffering from palindromic rheumatoid
arthritis. (Bryand Dep. 16:15–17:3.) Plaintiff experiences episodes of acute joint
swelling, warmth, and erythema in her hands and wrists that typically last between
12 hours and three to four days. (Id. 21:21–23:11; Dkt. 15-1 at 17.) Bryand was
prescribed the steroid prednisone and pain medication, which she takes during
flare-ups. (Bryand Dep. 18:9–16.) Bryand would sometimes wear a wrist brace

2

during flare-ups, and the condition would occasionally cause her to come to work
late or take a day off. (Id. 23:16–24:8.)
On January 25, 2011, Plaintiff received an official warning for
violating the county’s confidentiality policy. (Dkt. # 12-7, Ex. P.) Plaintiff, while
not on duty, had called an emergency responder who was responding to a situation
in which a citizen was shot and killed by Midland County police officers, inquiring
into who had been shot. (“Ingram Dep.,” Dkt. # 15-3, Ex. 21 at 22:12–18, 25:17–
26–10.) The warning stated that a subsequent violation of similar seriousness
could result in termination. (Dkt. # 12-7, Ex. P.)
Plaintiff’s job duties included entering and validating the county’s
data into the Texas Crime Information Center (“TCIC”) and National Crime
Information Center (“NCIC”) databases, which house data regarding stolen
property, missing and wanted persons, and sex offenders for use by law
enforcement officials. (Bryand Dep. 51:6–52:5; Ingram Dep. 37:7–24.) She was
also responsible for preparing for audits conducted by the Texas Department of
Public Safety. (Bryand Dep. 53:5–7.) In an audit conducted on January 27, 2011,
auditors found that “[t]he high number of incorrect and invalid records as
compared to records checked indicates a serious problem which could lead to
missed hits, false hits, or false arrests. The problem is compounded by the fact that

3

records which were found to be incorrect have been validated by your department.”
(Dkt. # 12-11, Ex. K at 7.) In response, Plaintiff subsequently drafted a letter on
behalf of Martin County Sheriff John Woodward (“Woodward”) that addressed the
deficiencies identified by the audit. (Dkt. # 15-1, Ex. 6; Bryand Dep. 77:20–
78:10.)
Plaintiff was also responsible for submitting monthly equipment
checklist reports to the Permian Basin Regional Planning Commission (“PBRPC”).
(Bryand Dep. 85:4–9.) As of May 6, 2011, the PBRPC had not received reports
from Martin County since December 2010. (Dkt. # 12-12, Ex. L.) Plaintiff’s
responsibilities also included submitting monthly reports to the Uniform Crime
Reporting (“UCR”) program, which tracks reportable crimes and arrests. (Ingram
Dep. 37:13–24.) In 2010 or 2011, Plaintiff fell “several months” behind on the
UCR reports and required assistance from then-Deputy Sheriff Brad Ingram1
(“Ingram”) to bring the county’s reports current. (Id. 38:2–12.)
On May 4, 2012, Sheriff Woodward placed Plaintiff on paid
administrative leave following allegations that on two occasions, Plaintiff had
asked for and received prescription medications from other individuals while on

1

During the period relevant to this action, Ingram was a Deputy Sheriff with
Martin County. At the time of his deposition, he was serving as the County
Sheriff.
4

duty. (Bryand Dep. 31:4–32:17; Ingram Dep. 59:25–60:14.) Plaintiff admitted to
the allegations, explaining that she had her own prescription but was not able to
leave her dispatch station to retrieve it from home. (Bryand Dep. 32:22–33:2.)
Sheriff Woodward told Plaintiff that she would be placed on paid leave for one
week, but when Plaintiff called Deputy Sheriff Ingram at the end of the week to
ask if she was scheduled to work, Ingram told her that she was not. (Id. 35:25–
36:22.)
When Plaintiff called again after the second week, Sheriff Woodward
called her in to meet with him on May 16, 2012. (Id. 37:8–17.) Woodward told
Plaintiff that he had discussed Plaintiff’s situation with the county treasurer, and
told Plaintiff to pick up a form with which she could seek disability benefits. (Id.
38:5–8.) Plaintiff contacted the treasurer, downloaded the forms, and took them to
her doctor, who would not sign the forms until he could prove that Plaintiff was in
fact disabled. (Id. 38:9–17, 47:13–19.) Plaintiff subsequently underwent a series
of medical tests in an attempt to determine the cause of her flare-ups. (Id. 26:1–
27–7.)
On July 19, 2012, Martin County Attorney James Napper (“Napper”)
sent Plaintiff a letter stating that Plaintiff had not provided medical documentation
to support her absence from work since May 4, 2012. (Dkt. # 12-5, Ex. E.) The

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letter set out three options: Plaintiff could (1) request unpaid medical leave for up
to six months if Plaintiff could provide documentation of a medical condition that
prevents her from working; (2) request to take her remaining vacation time, after
which she would need to request medical leave or resign; or (3) resign
immediately. (Id.) The letter further warned that absent a response from Plaintiff,
she would be terminated for excessive absenteeism on August 9, 2012, and invited
her to come to the courthouse to discuss her options further. (Id.)
Plaintiff did not receive the letter until August 7, 2012, and sought an
attorney to send a response letter requesting additional time to supply the requested
documentation because Plaintiff’s doctor was out of town. (Bryand Dep. 42:2–16.)
On August 22, 2014, Napper sent a letter to Frank McCallum, Plaintiff’s attorney, 2
stating that August 24, 2012 would be Plaintiff’s last paycheck, and that no
medical documentation had been received. (Dkt. # 12-6, Ex. F.) On August 24,
2012, Plaintiff sent Defendant (1) a doctor’s note stating that Plaintiff had an
autoimmune disease and was undergoing tests and treatments and (2) the abstract
of a study of asbestos-related autoimmune disease. (Dkt. 12-7, Ex. F; Bryand Dep.
44:5–18.) Plaintiff was terminated shortly thereafter.

2

Plaintiff testified that she did not hire McCallum and that McCallum was not her
attorney, but that she sought him out only for the purpose of responding to Napper
with a “legal letter.” (Bryand Dep. 41:25–42:25.)
6

Plaintiff filed a Complaint in this Court on March 21, 2014, asserting
that she was discriminated against on the basis of disability in violation of the
Americans with Disabilities Act (“ADA”), on the basis of sex in violation of Title
VII of the Civil Rights Act of 1964, and on the basis of age in violation of the
Texas Labor Code. (Dkt. # 1 ¶¶ 23–47.) Plaintiff seeks compensatory and
punitive damages as well as attorneys’ fees and costs. (Id. ¶¶ 48–49.) Martin
County filed the instant Motion for Summary Judgment on March 2, 2015. (Dkt.
# 12.) Plaintiff filed a Response on April 10, 2015 (Dkt. # 15), and Martin County
filed a Reply on April 17, 2015 (Dkt. # 18).
LEGAL STANDARD
A court must grant summary judgment when “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); see also Meadaa v. K.A.P.
Enterprises, L.L.C., 756 F.3d 875, 880 (5th Cir. 2014). “Substantive law will
identify which facts are material.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). A dispute is only genuine “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Id.
In seeking summary judgment, the moving party bears the initial
burden of demonstrating the absence of a genuine issue of material fact. Celotex

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Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party meets this burden,
the nonmoving party must come forward with specific facts that establish the
existence of a genuine issue for trial. Distribuidora Mari Jose, S.A. de C.V. v.
Transmaritime, Inc., 738 F.3d 703, 706 (5th Cir. 2013) (quoting Allen v. Rapides
Parish Sch. Bd., 204 F.3d 619, 621 (5th Cir. 2000)). “Where the record taken as a
whole could not lead a rational trier of fact to find for the non-moving party, there
is no genuine issue for trial.” Hillman v. Loga, 697 F.3d 299, 302 (5th Cir. 2012)
(internal quotation marks omitted).
In deciding whether a fact issue has been created, “the court must
draw all reasonable inferences in favor of the nonmoving party, and it may not
make credibility determinations or weigh the evidence.” Kevin M. Ehringer
Enters. v. McData Servs. Corp., 646 F.3d 321, 326 (5th Cir. 2011) (quoting Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)). However,
“[u]nsubstantiated assertions, improbable inferences, and unsupported speculation
are not sufficient to defeat a motion for summary judgment.” United States v.
Renda Marine, Inc., 667 F.3d 651, 655 (5th Cir. 2012) (quoting Brown v. City of
Hous., 337 F.3d 539, 541 (5th Cir. 2003)).

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DISCUSSION
I.

ADA Claims
Plaintiff’s Complaint asserts that Martin County terminated Plaintiff’s

employment because it regarded her as disabled and failed to reasonably
accommodate her physical impairment in violation of the ADA. (Dkt. # 1 ¶¶ 23–
36.) Martin County argues that it is entitled to summary judgment on Plaintiff’s
ADA claims because Plaintiff was not qualified to perform the essential functions
of her job and because Plaintiff did not request accommodation and testified that
her condition did not affect her work. (Dkt. # 12 at 12, 14.) The Court will first
address Plaintiff’s discrimination claim, and will then discuss Plaintiff’s claim for
failure to provide reasonable accommodation.
A.

Discrimination on the Basis of Disability
Under the ADA, it is unlawful to “discriminate against a qualified

individual on the basis of disability in regard to job application procedures, the
hiring, advancement, or discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges of employment.” 42 U.S.C.
§ 12112(a). A “qualified individual” is a person “who, with or without reasonable
accommodation, can perform the essential functions of the employment position.”
Id. § 12111(8). The term “disability” means “a physical or mental impairment that

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substantially limits one or more major life activities,” “a record of such an
impairment,” or “being regarded as having such an impairment.” Id. § 12102(1).
An individual is regarded as having such an impairment “if the individual
establishes that he or 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.” Id.
§ 12102(3)(A).
A plaintiff may establish a claim of discrimination under the ADA
either by presenting direct evidence or by presenting indirect evidence under the
burden-shifting framework set out in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). Seaman v. CSPH, Inc., 179 F.3d 297, 300 (5th Cir. 1999). “[D]irect
evidence includes any statement or written document showing a discriminatory
motive on its face.” Portis v. Nat’l Bank of New Albany, Miss., 34 F.3d 325, 328
(5th Cir. 1994). In determining whether verbal statements constitute direct
evidence, courts look to “whether the comments are (1) related to the plaintiff’s
protected characteristic; (2) proximate in time to the challenged employment
decision; (3) made by an individual with authority over the challenged employment
decision; and (4) related to the challenged employment decision.” Etienne v.
Spanish Lake Truck & Casino Plaza, L.L.C., 778 F.3d 473, 475 (5th Cir. 2015). If

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a plaintiff presents direct evidence of discrimination, “the burden of proof shifts to
the employer to establish by a preponderance of the evidence that the same
decision would have been made regardless of the forbidden factor.” Id.
1.

Qualified Individual

Martin County first argues that Plaintiff was not a “qualified
individual” subject to protection under the ADA. Martin County points to
evidence indicating “a progressive decline in [Plaintiff’s] work performance in the
years leading up to her termination,” including Plaintiff’s failure to file monthly
reports and the audit indicating a serious problem with recordkeeping in the TCIC
and NCIC databases.3 (Dkt. # 12 at 12–13.) The County further argues that

3

Martin County also cites the affidavit of Sheriff Woodward, in which Woodward
attests that “Tina Bryand stated to me on numerous occasions . . . that she knew
she had performance problems and those problems could be related to medical
problems she was having.” (Dkt. # 12-10, Ex. J.) Plaintiff objects that the
affidavit is not competent summary judgment evidence. “A party may object that
the material cited to support or dispute a fact cannot be presented in a form that
would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). Affidavits may be
used to support summary judgment, despite the fact that affidavits are often
admissible at trial as hearsay, on the theory that the evidence may ultimately be
presented at trial in admissible form. Argo v. Blue Cross & Blue Shield of Kan.,
Inc., 452 F.3d 1193, 1199 (10th Cir. 2006). Here, however, Defendant was unable
to produce Woodward for deposition, and Plaintiff’s two attempts to subpoena him
were unsuccessful. (Dkt. # 15 at 7.) It thus appears that Woodward would be
unavailable to testify to the statements in his affidavit at trial, and the Court will
therefore not consider his affidavit on summary judgment.
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Plaintiff’s deposition transcript clearly shows that Plaintiff lacked the
communication skills necessary for a 911 dispatcher. (Id. at 13.)
“‘Qualified’ is a term of art in the ADA context; an individual is
‘qualified’ if ‘with or without reasonable accommodation, she can perform the
essential functions of the employment position that such individual [holds or]
desires.’” Rodriguez v. ConAgra Grocery Prods. Co., 436 F.3d 468, 477 n.32 (5th
Cir. 2006) (quoting 42 U.S.C. § 12111(8)). Plaintiff has submitted evidence, in the
form of testimony from Deputy Sheriff Ingram, that Plaintiff’s work performance
was acceptable, he felt safe having Plaintiff handle emergencies, and Plaintiff
stayed on topic and capably answered questions in dispatch communications.
(Ingram Dep. 27:19–29:17.) Bryand also testified that her medical condition did
not affect her job performance, and the record includes no indication of
performance issues in the period between 2004, when she began suffering from the
condition, and 2011. (Bryand Dep. 102:23–103:2.)
This evidence, taken in the light most favorable to Plaintiff as the
non-moving party, is sufficient to create a genuine issue of material fact as to
whether Plaintiff was a qualified individual under the ADA. While the record
includes instances of lapses in Plaintiff’s performance in 2011 and 2012, Martin
County has not shown that she was unable to perform the essential functions of her

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position as a matter of law. Plaintiff’s occasional need to come in late or take a
day off during a flare-up is not the sort of absence that would prevent her from
being able to perform the essential functions of her position. Further, despite
Martin County’s suggestion to the contrary, Plaintiff’s ability to clearly
communicate answers during her 2015 deposition is not evidence of her ability to
communicate as a dispatcher in 2011 and 2012 prior to being placed on leave.4
Martin County also argues, however, that Plaintiff is judicially
estopped from showing she is qualified because she sought disability benefits after
being placed on administrative leave. (Dkt. # 12 at 17.) The Supreme Court has
held that an ADA plaintiff who has previously filed for a total disability claim
under the Social Security Disability Insurance program, which requires that a
person be unable to work, “must proffer a sufficient explanation” for the apparent
inconsistency with the requirement that she show she is a “qualified individual”
under the ADA. Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999).
Here, Plaintiff began to fill out forms for disability benefits under the Texas
County & District Retirement System Act, Tex. Gov’t Code Ann. § 841.001 et
4

The Court further notes that Deputy Sheriff Ingram testified that Plaintiff’s
difficulty communicating began after her employment with the county had ceased,
possibly due to suffering from a stroke or “ministrokes.” (Ingram Dep. 54:1–16,
56:14–57:5.) Martin County’s argument that Plaintiff’s deposition testimony is
evidence of her inability to clearly communicate, an essential function required of
a 911 dispatcher, is thus both meritless and misleading.
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seq., which requires that the applicant be “mentally or physically incapacitated for
any gainful occupation” and that “the incapacity is likely to be permanent.”
§ 844.303(b)(2). Plaintiff never filed her claim, however, and thus never
represented that she was incapacitated for any gainful occupation or otherwise
disabled. She is therefore not judicially estopped from claiming that she is a
qualified individual under the ADA, and the evidence in the record establishes a
genuine dispute of material fact as to whether she is so qualified.
2.

Direct Evidence of Discrimination

Plaintiff has also provided sufficient evidence to create a dispute of
material fact as to whether she was discriminated against on the basis of her
perceived disability. Plaintiff has presented evidence that Sheriff Woodward
originally placed Plaintiff on one week of paid administrative leave after finding
out that Plaintiff, while on duty, had asked for and received others’ prescription
medications on two occasions. (Bryand Dep. 31:4–32:17; Ingram Dep. 59:25–
60:14.) After the first week, however, Plaintiff was told she had not been put back
on the schedule. (Bryand Dep. 37:8–17.) Deputy Sheriff Ingram, who was in
charge of scheduling dispatchers, testified that he was told to take Plaintiff off of
the dispatch schedule “‘til I was told differently.” (Ingram Dep. 60:23.) When
Plaintiff called after the second week, she was told to meet with Sheriff

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Woodward. (Bryand Dep. 37:8–17.) During their meeting, Woodward told her to
he had discussed the matter with the county treasurer, and that Plaintiff needed to
contact the treasurer to pick up forms that would allow Plaintiff to apply for
disability benefits.5 (Id. 38:5–8.)
Woodward’s instruction to Plaintiff that she needed to file for
disability benefits, after placing her on administrative leave and refusing to put her
back on the dispatch schedule, is direct evidence that Woodward regarded Plaintiff
as disabled. Defendant argues, however, that even if Plaintiff was regarded as
disabled, placing Plaintiff on paid administrative leave was not an adverse
employment action under the ADA. (Dkt. # 18 at 2.) “[A]dverse employment
actions consist of ultimate employment decisions such as hiring, firing, demoting,
promoting, granting leave, and compensating.” Thompson v. City of Waco, Tex.,
764 F.3d 500, 503 (5th Cir. 2014) (internal quotation marks omitted). Under Fifth
Circuit precedent, placing an employee on paid leave is not an adverse
employment action. McCoy v. City of Shreveport, 492 F.3d 551, 559 (5th Cir.
2007). But see Timmons v. General Motors Corp., 469 F.3d 1122, 1128 (7th Cir.
2006) (holding than involuntarily placing an employee on paid disability leave was
5

Additionally, Cynthia O’Donnell (“O’Donnell”), the county treasurer, testified
that Sheriff Woodward told her that Plaintiff was having medical problems with
her hands around the time that Plaintiff contacted O’Donnell asking what she
needed to do to file for disability. (“O’Donnell Dep.,” Dkt. # 15-3 at 26:18–29:5.)
15

an adverse employment action because the action materially reduced the
employee’s responsibilities).
Here, however, Plaintiff was in fact terminated, although not until
August 24, 2012. Plaintiff did not return to work between May 16, 2012 and the
date she was discharged, believing that she would not be permitted to return to
work after her conversation with Sheriff Woodward. (Bryand Dep. 38:5–17,
44:19–45:7.) The three options presented in Napper’s July 19, 2012 letter to
Plaintiff warning that she would be terminated for “excessive absenteeism” did not
include the option to return to work. (See Dkt. # 12-5, Ex. E.) The letter also
apparently ignored the fact, established by Plaintiff’s uncontradicted testimony,
that the reason for Plaintiff’s absence was that Sheriff Woodward had placed her
on administrative leave. (See Bryand Dep. 31:4–32:17.)
Given the circumstances surrounding Plaintiff’s termination,
Woodward’s instruction that Plaintiff seek disability benefits after putting her on
administrative leave and refusing to put her on the dispatcher schedule is direct
evidence that he regarded her as disabled and terminated her employment on the
basis of her perceived disability. Applying the direct evidence factors from
Etienne, 778 F.3d at 475, Woodward’s instruction was related to Plaintiff’s
disability; was made approximately two months prior to the first letter warning that

16

Plaintiff would be terminated, and just over three months prior to her termination;
was made by a person with authority to fire Plaintiff; and was related to the
decision to terminate Plaintiff—Woodward’s instruction was made in response to
Plaintiff’s inquiries into whether she could go back to work after being placed on
leave, and Plaintiff’s subsequent termination was a direct result of having been
placed on leave.
In light of this evidence, Martin County must show by a
preponderance of the evidence that the same decision would have been made
regardless of Plaintiff’s perceived disability. See Etienne, 778 F.3d at 475. To
prevail on summary judgment, it “must do more than merely identify a legitimate
basis for its decision—it must show that any reasonable jury would conclude that it
would have made the same decision absent the discrimination.” Id. at 477. Martin
County argues that Plaintiff was placed on administrative leave for performance
problems, and that she was terminated after failing to provide medical
documentation of her condition. (Dkt. # 12 at 6, 13; Dkt. # 18 at 4.) While the
record includes evidence of lapses in Plaintiff’s performance in early 2011, the
record also includes testimony from Deputy Sheriff Ingram that Plaintiff’s work
performance was acceptable and that he did not notice “a progressive decline” in
her ability to perform dispatching tasks. (Ingram Dep. 31:16–21, 33:1–11.)

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Additionally, the Martin County Employee Policy Manual in effect at
the time of Plaintiff’s termination required that an employee “be advised that her
performance does not meet required standards before being terminated for cause,”
and that a supervisor “must take reasonable action to correct the shortcoming
before it becomes serious enough to warrant discharge.” (Dkt. # 15-2, Ex. 18 at 5.)
The only records of county action related to Plaintiff’s performance prior to her
termination are the written warning for violating the county’s confidentiality policy
in January 2011 and a warning for being tardy in 2000. (Dkt. # 12-16, Ex. P.)
Notably, all of the documented issues with Plaintiff’s performance occurred more
than a year before she was placed on administrative leave in May 2012 and
subsequently discharged in August 2012. 6 Plaintiff has also submitted written
warnings issued to other dispatchers and jailers during the relevant time period,
indicating that the Sheriff’s office had a practice of documenting and addressing
employee performance issues when they did occur. (See generally Dkt. # 17.)
This evidence is more than enough to establish a genuine dispute of
material fact as to whether Martin County would have terminated Plaintiff
regardless of her perceived disability. As a result, Martin County is not entitled to
6

The warning for violating the county’s confidentiality policy, the audit
documenting recordkeeping deficiencies, and the tardiness in filing various
monthly reports all occurred in either 2010 the first half of 2011. (See Dkt. # 12-7,
Ex. P; Dkt. # 12-11, Ex. K at 7; Dkt. # 12-12, Ex. L; Ingram Dep. 38:2–12.)
18

judgment as a matter of law on Plaintiff’s claim for discrimination in violation of
the ADA, and the Court DENIES Martin County’s Motion for Summary Judgment
on this claim.
B.

Reasonable Accommodation
Plaintiff also alleges that Martin County failed to accommodate her

disability. Under the ADA, an employer discriminates against an employee if it
fails to make “reasonable accommodations to the known physical or mental
limitations of an otherwise qualified individual with a disability.” 42 U.S.C.
§ 12112(b)(5)(A). To establish a claim for failure to accommodate, a plaintiff
must show that “(1) the plaintiff is a ‘qualified individual with a disability;’ (2) the
disability and its consequential limitations were ‘known’ by the covered employer;
and (3) the employer failed to make ‘reasonable accommodations’ for such known
limitations.” Neely v. PSEG Texas, Ltd. P’ship., 735 F.3d 242, 247 (5th Cir. 2013)
(quoting Feist v. La. Dep’t of Justice, Office of the Att’y Gen., 730 F.3d 450, 452
(5th Cir. 2013)).
“Because the ADA requires employers to accommodate the
limitations arising from a disability, and not the disability itself, an employee
seeking to assert a disability claim must produce evidence that the employer knew
not only of the employee’s disability, but also of the physical or mental limitations

19

arising therefrom.” Seaman v. CSPH, Inc., 179 F.3d 297, 300 (5th Cir. 1999)
(citations omitted). In other words, to prove discrimination, “an employee must
show that the employer knew of such employee’s substantial physical or mental
limitation.” Taylor v. Principal Fin. Grp., 93 F.3d 155, 163 (5th Cir. 1996).
Further, “[i]f the employee fails to request an accommodation, the employer cannot
be held liable for failing to provide one.” Id. at 165.
Here, Plaintiff has not submitted evidence establishing a genuine
dispute of material fact as to whether Plaintiff requested any accommodation.
Plaintiff testified that she never requested any accommodation for her condition
while employed with Martin County. (Bryand Dep. 23:12–15.) This is consistent
with her testimony that she “didn’t consider it a disability. It was a medical
condition causing an auto-immune problem. It didn’t affect my job.” (Id. 14:17–
19.) If Plaintiff did not think her condition affected her work, it makes sense that
she would not ask for accommodation.
Plaintiff argues that her requests for time off was a request for
accommodation. (Dkt. # 15 at 13.) In her deposition, Plaintiff answered
affirmatively when asked whether she had ever requested time off because of the
condition, but clarified that “[i]t wasn’t asking off. It was maybe being a little bit
late . . . . Maybe once a month, maybe twice, and sometimes not at all a month, you

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know.” (Id. 23:16–25.) Even if Plaintiff in fact requested time off to
accommodate her condition, there is no evidence that Martin County refused to
grant her the time off or in any way penalized her for taking the time off.
Additionally, there is no evidence that her supervisors knew of any substantial
limitation caused by her condition—indeed, Plaintiff herself did not view her
condition as substantially limiting her work duties.
There is thus no genuine dispute of material fact as to whether Martin
County failed to make reasonable accommodations for Plaintiff’s known
limitations, and Martin County is entitled to judgment to a matter of law on
Plaintiff’s claim that Martin County failed to accommodate her disability. The
Court therefore GRANTS summary judgment for Martin County on this claim.
II.

Sex Discrimination Claim
Under Title VII, it is unlawful “to fail to hire or to discharge any

individual, or otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such
individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). The “ultimate question” in every
Title VII case is whether the defendant intentionally discriminated against the
plaintiff because of a protected characteristic. St. Mary’s Honor Ctr. v. Hicks, 509

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U.S. 502, 511 (1993); Roberson v. Alltel Info. Serv., 373 F.3d 647, 651 (5th Cir.
2004).
When a discrimination claim is supported by circumstantial evidence,
the plaintiff must show that she (1) is a member of a protected class, (2) was
qualified for the position she sought or held, (3) suffered an adverse employment
action, and (4) was replaced by someone outside of the protected group treated less
favorably than another similarly situated employee outside of the protected group.
McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007). Adverse
employment actions “include only ultimate employment decisions such as hiring,
granting leave, discharging, promoting, or compensating.” Id. at 559.
If the plaintiff establishes a prima facie case, the burden of production
shifts to the employer to provide a non-discriminatory reason for the action. Id. at
562–63. If the employer meets its burden, the burden then shifts back to the
plaintiff to show an issue of fact as to whether the employer’s proffered reason is
pretextual. Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 345 (5th Cir.
2007). “To carry this burden, the plaintiff must rebut each non-discriminatory or
nonretaliatory reason articulated by the employer.” McCoy, 492 F.3d at 557.
Only the fourth prong of the prima facie case—whether Plaintiff was
replaced by or treated less favorably than a similarly situated employee outside of

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the protected group—is at issue here. 7 Plaintiff argues that she has established a
prima facie case for sex discrimination because Chance Ranier (“Ranier”) and
Misti Thigpen Hayes (“Hayes”) replaced her as daytime dispatchers and jailers.
(Dkt. # 15 at 16.) The record, however, shows that Ranier was hired as a deputy
sheriff, and Hayes was Plaintiff’s replacement. (See Bryand Dep. 39:12–19
(stating that Ranier was “already on as a deputy” and “Misty was, also,
dispatching” when she met with Sheriff Woodward on May 16, 2012); Ingram
Dep. 47:4–13 (“Misty . . . was a part-time dispatcher. And I believe after Ms.
Bryand’s departure she became full-time.”), 72:11–18 (stating that Ranier “became
a deputy” in June 2012 and that “I think he’s the one that took my position when I
left”), 98:13–19 (“Q: When you were told to take Ms. Bryand off the schedule,
who replaced her? A: I believe Missy Thigpen was working part-time and I think
she moved into that slot, best I can remember. Misty, I think, was her name
instead of Missy.”), 99:23–25 (“Q: And do you know—who would you consider
[Bryand’s] permanent replacement? A: I think Misty Thigpen.”).)

7

In a Title VII discrimination action, the plaintiff can show that she is qualified for
the position for the purpose of establishing a prima facie case of discrimination by
demonstrating that “objective employment qualifications have been met.” Medina
v. Ramsey Steel Co., Inc., 238 F.3d 674, 681 (5th Cir. 2001). Martin County does
not argue that Plaintiff, who worked for the county as a dispatcher and jailer for
over 20 years, did not have the objective qualifications required for her position.
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Because Hayes is also a female, there is no dispute of material fact as
to whether Plaintiff was replaced by someone outside of the protected class. As a
result, Plaintiff has failed to establish a prima facie case of discrimination on the
basis of her sex, and Martin County is entitled to judgment as a matter of law.8
The Court therefore GRANTS summary judgment to Martin County on Plaintiff’s
claim for sex discrimination.
III.

Age Discrimination Claim
Under the Texas Commission on Human Rights Act (“TCHRA”), an

employer commits an unlawful employment practice if the employer fails or
refuses to hire an individual, discharges an individual, or discriminates in any other
manner against an individual in connection with compensation or the terms,
conditions, or privileges of employment because of the individual’s age. Tex. Lab.
Code § 21.051. “Section 21.051 is substantively identical to its federal equivalent
in Title VII,” with the exception that federal law protects age under the Age
Discrimination in Employment Act, 29 U.S.C. §§ 621–634, which employs an
8

Plaintiff also suggests in passing that she was treated less favorably than male
dispatchers and jailers because they were paid more than she was. (Dkt. # 15 at
16.) Plaintiff has submitted no evidence, however, that these male employees were
similarly situated to her. The record instead shows that Plaintiff was paid salary
while the male dispatchers, who worked night and weekend shifts, were paid
hourly wages that included overtime and shift differential. (Bryand Dep. 57:1–
58:17.) Plaintiff is therefore unable to support a prima facie case of sex
discrimination on the basis of disparate pay.
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analysis similar to the approach under Title VII. Quantum Chem. Corp. v.
Toennies, 47 S.W.3d 473, 475 & n.2 (Tex. 2001); Tex. Lab. Code § 21.001 (“The
general purposes of this chapter are to provide for the execution of the policies of
Title VII of the Civil Rights Act of 1964 and its subsequent amendments . . . .”).
“[A]n unlawful employment practice is established when the complainant
demonstrates that . . . age . . . was a motivating factor for an employment practice,
even if other factors also motivated the practice . . . .” Tex. Lab. Code § 21.125(a).
To demonstrate an age discrimination claim based on circumstantial
evidence, the plaintiff must show that he (1) is a member of the protected class;
(2) was qualified for the position he sought or held; (3) suffered an adverse
employment action; and (4) was either replaced by someone outside the protected
class, replaced by someone younger, or otherwise discharged because of his age.
Rachid v. Jack In The Box, Inc., 376 F.3d 305, 309 (5th Cir. 2004). Adverse
employment actions include “ultimate employment decisions such as hiring,
granting leave, discharging, promoting, and compensating.” McCoy v. City of
Shreveport, 492 F.3d 551, 559 (5th Cir. 2007).
If the plaintiff establishes a prima facie case, the burden of production
shifts to the employer to provide a non-discriminatory reason for the action. Id. at
562–63. If the employer meets its burden, the burden then shifts back to the

25

plaintiff to show an issue of fact as to whether the employer’s proffered reason is
pretextual. Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 345 (5th Cir.
2007). Under the TCHRA, the plaintiff must show either that the reason stated by
the employer was a pretext for discrimination, or that the employer’s reason, while
true, was only one reason for its conduct, and that discrimination was also a
motivating factor. Reed v. Neopost USA, Inc., 701 F.3d 434, 439–40 (5th Cir.
2012).
Only the fourth prong of the prima facie case is at issue here. 9
Plaintiff argues that she was replaced by Ranier and Hayes, both of whom were
“significantly younger.” (Dkt. # 15 at 16.) As discussed above, the record shows
that Hayes, not Ranier, replaced Plaintiff. There is no evidence in the record,
however, of Hayes’s age. The only record evidence possibly related to Hayes’s
age is Plaintiff’s testimony that “I was replaced by a younger generation.” (Bryand
Dep. 14:16.) When asked who had replaced her, however, Plaintiff responded that
she “couldn’t tell you information after I left,” but that she had been told “[f]ive
people took over my job.” (Id. 67:11–18.) Given Plaintiff’s testimony that she did
not know who had replaced her and that five unnamed persons had assumed her

9

Plaintiff is 52 years old, and thus was over 40 years old during the relevant time
period. (Bryand Dep. 8:21–22.) The TCHRA protects individuals 40 years and
older from age discrimination. Tex. Lab. Code § 21.101.
26

responsibilities, her statement that she was replaced by an unspecified “younger
generation” cannot be fairly read to refer to Hayes.
The evidence in the record, taken in the light most favorable to
Plaintiff as the non-movant, is thus insufficient to establish a genuine dispute of
material fact as to whether Hayes was outside of the protected class. As a result,
Plaintiff has failed to establish a prima facie case for age discrimination, and
Martin County is entitled to judgment as a matter of law. The Court therefore
GRANTS summary judgment for Martin County on Plaintiff’s claim for age
discrimination.
CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART AND
DENIES IN PART Martin County’s Motion for Summary Judgment (Dkt. # 12.)
Specifically, the Court DENIES summary judgment on Plaintiff’s claim that she
was terminated on the basis of her perceived disability, and GRANTS summary
judgment on her claims for failure to provide reasonable accommodation,
discrimination on the basis of sex, and discrimination on the basis of age.

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IT IS SO ORDERED.
DATED: Midland, Texas, August 20, 2015.

_____________________________________
David Alan Ezra
Senior United States Distict Judge

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