Hous. v. Tex. Dep't of Agric.

• Decision Date: 05 November 2021
• Docket Number: No. 20-20591,20-20591
• Citation: 17 F.4th 576
• Parties: Ida Johnson HOUSTON, Plaintiff—Appellant, v. TEXAS DEPARTMENT OF AGRICULTURE; Commissioner Sid Miller, in his official capacity, Defendants—Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

17 F.4th 576

Ida Johnson HOUSTON, Plaintiff—Appellant,

v.TEXAS DEPARTMENT OF AGRICULTURE; Commissioner Sid Miller, in his official capacity, Defendants—Appellees.

No. 20-20591

United States Court of Appeals, Fifth Circuit.

FILED November 5, 2021

Victoria Plante-Northington, Plante Law Firm, P.C., Houston, TX, for Plaintiff-Appellant.

Melinda Wetzel, Cory A. Scanlon, Esq., Office of the Attorney General of Texas, General Litigation Division, Austin, TX, for Defendants-Appellees.

Before King, Higginson, and Wilson, Circuit Judges.

Stephen A. Higginson, Circuit Judge:

Ida Houston, a former state employee at the Texas Department of Agriculture ("TDA"), alleges that she was fired in retaliation for exercising her rights under the Family and Medical Leave Act ("FMLA") and, similarly, discriminated against under the Rehabilitation Act. Houston suffers from lupus and other illnesses.

The district court granted TDA's motion for summary judgment,¹ concluding that TDA had established legitimate, nondiscriminatory reasons for Houston's termination and that Houston failed to raise a disputed material fact showing that those reasons were pretextual.² Houston appeals.

I.

The district court recounted the facts as follows, which are largely undisputed on appeal:

Ida Johnson Houston began working as a Program Review Specialist for Defendant Texas Department of Agriculture ("TDA") in June 2012. Houston worked in TDA's Food and Nutrition Division and audited participants in the Child and Adult Food Care Program and Summer Food Service Program, both of which receive federal funding. Houston's responsibilities required on-site inspections to observe and confirm that the sites were complying with state and federal regulations. Houston suffers from lupus, anemia

, and other illnesses, requiring her to be absent from work and

sometimes take leave under the Family Medical and Leave Act [sic] ("FMLA").

In January 2016, Houston returned to her position after a longterm medical leave and submitted a request for accommodations permitting her to telework and to work a compressed workweek. TDA granted the request in part, allowing Houston to work four ten-hour days. TDA denied the telework request because Houston's duties could not be performed solely from home due to the on-site inspections; TDA's strict policy concerning telework, which was updated in 2015, grants such requests only in "extraordinary circumstance[s]"; and Houston needed training to improve performance. According to Houston, she was not given a reason for the denial, and she also maintains that she had been allowed to telework from 2012 until she took medical leave in 2015.

In August 2016, Houston's manager, Karen Cade, gave Houston a written warning for "failure to meet expectations," a "pattern of excessive absenteeism and tardiness," "inadequate job performance," and insubordination. TDA gave Houston the opportunity to provide a rebuttal, which she provided, and TDA amended the warning to delete some of the absences and tardy arrivals. In October 2016, Cade gave Houston another written warning for leaving work early and arriving late; accruing overtime without supervisor approval; late arrivals to sites being audited; and performance issues including failure to submit accurate and timely administrative reviews, failure to follow TDA's travel policy, and insubordination. Houston again was given the opportunity to provide a rebuttal to the warning, but she provided none.

TDA gave Houston another written warning in April 2017 because of her failure to improve on the issues documented in the previous warnings. The April warning listed dates of absences and tardy arrivals to both the office and site visits, as well as late or incomplete assignments, and notified Houston that she was being placed on a ninety-day probation period, ending July 27, 2017, during which she needed to improve her performance or face discipline up to and including termination. Houston provided a rebuttal to this warning, but no amendments were made. About mid-way through the probation period, on June 7, 2017, Cade gave to Houston a written progress report on her probation documenting that Houston so far had "failed to meet the expectation specified in the written warning-probation memorandum." Houston again provided a rebuttal to this memo, but no changes were made.

When the probationary period ended, TDA informed Houston that management was assessing her progress. Cynthia Mendoza, Administrator for Human Resources; Angela Olige, Assistant Commissioner for Food and Nutrition; Susan Maldonado, Deputy General Counsel; and Tracy Mueck, Administrator for Food and Nutrition, evaluated Houston's progress and ultimately decided to discharge Houston because of her failure to correct her performance deficiencies over the course of her probation, excessive absenteeism and tardiness unrelated to protected FMLA leave, and her insubordination. On August 11, 2017, Mendoza directed Mueck to prepare a termination memo to be given to Houston on August 14. But Houston called in sick on August 14 and took FMLA leave from August 14-16 for her illness. Her termination notice was thus delayed until August 17 when she returned to work.³

These facts are derived from the uncontroverted documents submitted by both parties.⁴

Houston commenced this suit against the TDA asserting various employment, disability, and discrimination claims. Following TDA's motion to dismiss, Houston filed a first amended complaint—the operative complaint here—adding defendant Commissioner Sid Miller, sued in his official capacity, and adding a disability discrimination claim under the Rehabilitation Act. The district court granted in part and denied in part the defendants’ renewed motion to dismiss.⁵

On June 12, 2020, the defendants moved for summary judgment on Houston's remaining two claims: (1) her retaliation claim under the FMLA, 29 U.S.C. § 2601 et seq. , and (2) her discrimination claim under Section 504 of the Rehabilitation Act, 29 U.S.C. § 701, et seq . On October 12, 2020, the district court granted the motion, dismissed Houston's claims, and entered final judgment against Houston. On November 12, 2020, Houston timely filed her notice of appeal of the summary judgment order.

II.

This court "review[s] a grant of summary judgment de novo, applying the same standard as did the district court." Wheat v. Fla. Par. Juv. Just. Comm'n , 811 F.3d 702, 705 (5th Cir. 2016). Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).

"A genuine dispute as to a material fact exists when, after considering the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, a court determines that the evidence is such that a reasonable jury could return a verdict for the party opposing the motion." Ion v. Chevron USA, Inc. , 731 F.3d 379, 389 (5th Cir. 2013). All facts and evidence are construed "in the light most favorable to the nonmoving party," and "a court must draw all reasonable inferences in favor of the nonmoving party and may not make credibility determinations or weigh the evidence." Id.

"Once the moving party has initially shown ‘that there is an absence of evidence to support the non-moving party's cause,’ the non-movant must come forward with ‘specific facts’ showing a genuine factual issue for trial." TIG Ins. Co. v. Sedgwick James of Wash. , 276 F.3d 754, 759 (5th Cir. 2002) (quoting Celotex Corp. v. Catrett , 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) and Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ). "Summary judgment cannot be defeated through ‘[c]onclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation.’ " Acker v. Gen. Motors, L.L.C. , 853 F.3d 784, 788 (5th Cir. 2017) (alteration in original) (quoting Oliver v. Scott , 276 F.3d 736, 744 (5th Cir. 2002) ).

III.

Houston appeals only the district court's order granting summary judgment to defendants on her FMLA and Rehabilitation Act claims. Houston primarily argues that her termination was retaliatory for taking FMLA leave. Houston concedes that her Rehabilitation Act claim is contingent on the success of her FMLA retaliation claim and whether she satisfied her burden to show a dispute of material fact regarding whether TDA's stated reasons for termination were pretextual.

Retaliation claims under the FMLA are analyzed under the McDonnell Douglas burden-shifting framework. Wheat , 811 F.3d at 705. Under that framework, the plaintiff must first establish a prima facie retaliation case by showing three elements: "1) he was protected under the FMLA; 2) he suffered an adverse employment action; and 3) he was treated less favorably than an employee who had not requested leave under the FMLA or the adverse decision was made because he sought protection under the FMLA." Acker , 853 F.3d at 790 (emphasis added) (quoting Mauder v. Metro. Transit Auth. of Harris Cnty. , 446 F.3d 574, 583 (5th Cir. 2006) ). If the plaintiff establishes a prima facie case, then the burden shifts to the defendant to "articulate a legitimate, non-discriminatory reason for the adverse employment action." Richardson v. Monitronics Int'l, Inc. , 434 F.3d 327, 333 (5th Cir. 2005). In the third step of the McDonnell Douglas framework, the burden shifts back to the plaintiff to "show by a preponderance of the evidence" that the defendant's reason is a pretext for retaliation. Id.

The district court concluded that, "given the relatively low threshold to establish a prima facie case, Houston has minimally satisfied her burden." See also Nichols v. Loral Vought Sys. Corp. , 81 F.3d 38, 41 (5th Cir. 1996) ("[T]o establish a prima facie case, a plaintiff need only make a very minimal showing.") (alteration in original). Upon review, w...