Jennings v. Towers Watson

• Decision Date: 25 August 2021
• Docket Number: No. 19-11028,19-11028
• Parties: Christian JENNINGS, Plaintiff—Appellant, v. TOWERS WATSON, an entity, also known as Willis Towers Watson P.L.C., Defendant—Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

11 F.4th 335

Christian JENNINGS, Plaintiff—Appellant,

v.TOWERS WATSON, an entity, also known as Willis Towers Watson P.L.C., Defendant—Appellee.

No. 19-11028

United States Court of Appeals, Fifth Circuit.

FILED August 25, 2021

Christian Jennings, Pro Se.

Jeremy Wayne Hawpe, Littler Mendelson, P.C., Dallas, TX, for Defendant-Appellee.

Before King, Higginson, and Wilson, Circuit Judges.

Stephen A. Higginson, Circuit Judge:

Christian Jennings sued her former employer Towers Watson ("WTW," also known as Willis Towers Watson), alleging civil conspiracy under Texas law, a hostile work environment under Title VII of the Civil Rights Act of 1964 ("Title VII") and the Americans with Disabilities Act of 1990 ("ADA"), disability discrimination under the ADA, racial discrimination, and wrongful termination. After both parties moved for summary judgment, the district court granted WTW's motion and denied Jennings's. Jennings now appeals, and we AFFIRM.

I.

In May 2016, Jennings was hired by WTW to work as a seasonal benefits advisor. She had served as a benefits advisor for WTW for each of the three prior seasons.

On May 24, 2016, during the second day of mandatory training, Jennings fell and sustained injuries in WTW's parking lot. A doctor diagnosed Jennings with left ankle pain and right shin pain the following day. The doctor cleared Jennings to return to work that day with certain restrictions which were expected to last until June 1, 2016. These restrictions included limiting walking to two hours per day and refraining from climbing stairs.

Jennings did not return to the training, which was held on the second floor of a building, because she believed that the building did not have an accessible elevator. The parties dispute whether WTW provided Jennings access to an elevator she could use to attend the training. Jennings claims that she asked WTW to have a trainer meet her on the first floor to continue her training and that this request was denied. Instead, WTW informed Jennings that she could restart her training on June 6, 2016. Jennings claims that WTW told her that if she did not report for training on June 6, 2016, she would be unemployed. On June 6, Jennings restarted, and subsequently completed, her training.

On June 15, 2016, Jennings's supervisor, Kim "Bo" Baker, sent an email to Jennings and several other employees instructing them to call the "manager-on-duty line" ("MOD line") and text his cell phone if they were going to be absent or tardy.

On June 20, 2016, Jennings filed a Charge of Discrimination (the "First Charge") with the Equal Employment Opportunity Commission ("EEOC"), in which she alleged race and disability discrimination, failure to accommodate her disability, and retaliation. In the First Charge, Jennings asserted that after being injured on the job and seeing a doctor, her reasonable accommodation was denied and her start date was changed to June 6, 2016. According to the First Charge, Jennings was told that she must return to work by that date regardless of her condition. Jennings further claimed that she was not paid for two-and-a-half training days she attended in May 2016, and that she was aware of similarly situated white coworkers who received different treatment in this regard.¹

On July 6, 2016, Baker issued and documented a verbal warning to Jennings for purported attendance issues. According to the documented warning, throughout June and July 2016, Jennings was absent seven times, tardy twice, left work early twice, and failed to inform Baker that she would be absent or tardy. The warning advised that Jennings's failure to correct her behavior could result in a written warning and possible termination.

Two days later, on July 8, 2016, Baker issued Jennings a written warning based on additional asserted attendance violations. The written warning noted Jennings's prior absences, as well as her absence that day. In response to the documented warning, Jennings commented that she had been having computer problems and was being mistreated and treated differently than other employees.

Four days later, on July 12, 2016, WTW terminated plaintiff "for insubordination: specifically, her violations of attendance policies and procedures."

Jennings filed a second Charge of Discrimination with the EEOC (the "Second Charge") two days later, alleging retaliation for filing the First Charge. The EEOC issued Jennings a right-to-sue letter for the Second Charge in September 2017.

Jennings, proceeding pro se, sued WTW in federal district court in November 2017, alleging civil conspiracy under Texas law, a hostile work environment under Title VII and the ADA, disability discrimination under the ADA, racial discrimination, and wrongful termination.

WTW sought dismissal of Jennings's civil conspiracy and wrongful termination claims. A magistrate judge recommended dismissal of the civil conspiracy claim and advised that Jennings's wrongful termination claim was based on her claims of race and disability discrimination, rather than constituting a freestanding claim. The district court accepted the magistrate judge's findings, conclusions, and recommendation and dismissed Jennings's civil conspiracy claim. Jennings did not appeal this order.

Jennings eventually moved for summary judgment on her remaining claims, and WTW subsequently filed its own summary judgment motion. The magistrate judge recommended denying Jennings's summary judgment motion and granting WTW's. The magistrate judge concluded that Jennings had failed to exhaust her administrative remedies for her race discrimination, disability discrimination, and hostile work environment claims. The magistrate judge additionally reasoned that even if Jennings had exhausted her administrative remedies, her claims failed as a matter of law because (1) Jennings's injury was "not a substantially limiting impairment" under the ADA as there was no evidence of any permanent injury; (2) Jennings had not established an "adverse employment action" to maintain her race discrimination claim; (3) she also had not presented evidence that WTW's asserted basis for her firing was pretextual; and (4) she had offered no evidence that WTW's "alleged conduct was objectively and subjectively abusive," as required to maintain her hostile work environment claim.

The district court accepted the magistrate judge's findings, conclusions, and recommendation, granted WTW's summary judgment motion, denied Jennings's, and taxed costs against Jennings. Jennings timely appealed. The district court denied Jennings leave to appeal in forma pauperis ("IFP").

Jennings subsequently moved the district court to alter or amend the judgment pursuant to Federal Rule of Civil Procedure 59, and the district court denied the motion. The district court again denied Jennings leave to proceed IFP. Jennings filed a timely amended notice of appeal from the denial of her Rule 59 motion.

Our court granted Jennings leave to proceed IFP on appeal, noting that (1) Jennings arguably exhausted her disability discrimination claim through her EEOC charges, and (2) "the district court's determination that Jennings's temporary ankle injury

failed to establish a disability did not consider the 2008 amendments to the ADA and subsequent cases."

II.

We review a district court's grant of summary judgment de novo. Renwick v. PNK Charles, L.L.C. , 901 F.3d 605, 611 (5th Cir. 2018) (citing United States ex rel. Farmer v. City of Houston , 523 F.3d 333, 337 (5th Cir. 2008) ). "Summary judgment is proper if the pleadings and evidence show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Hernandez v. Yellow Transp., Inc. , 670 F.3d 644, 650 (5th Cir. 2012) (citing FED. R. CIV. P. 56(a) ). In making this determination, we construe "all facts and evidence in the light most favorable to the non-moving party." Moss v. Harris Cnty. Constable Precinct One , 851 F.3d 413, 417 (5th Cir. 2017) (quoting Juino v. Livingston Par. Fire Dist. No. 5 , 717 F.3d 431, 433 (5th Cir. 2013) ). However, where the non-movant "would have the burden of proof at trial, that party must point to evidence supporting its claim that raises a genuine issue of material fact." Id. (citing Tran Enters., LLC v. DHL Exp. (USA), Inc. , 627 F.3d 1004, 1010 (5th Cir. 2010) ). "A pro se litigant's pleadings are construed liberally." Butler v. Porter , 999 F.3d 287, 292 (5th Cir. 2021) (citing Haines v. Kerner , 404 U.S. 519, 520–21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) ).

III.

We first consider the district court's determination that Jennings failed to administratively exhaust her claims of (1) disability discrimination and failure to accommodate under the ADA, (2) race discrimination under Title VII, and (3) a hostile work environment under the ADA and Title VII.² We review this determination de novo. Pacheco v. Mineta , 448 F.3d 783, 788 (5th Cir. 2006) (citing Martinez v. Dep't of U.S. Army , 317 F.3d 511, 512 (5th Cir. 2003) ; Randel v. Dep't of U.S. Navy , 157 F.3d 392, 395 (5th Cir. 1998) ).

Before a plaintiff may file suit in federal court under either Title VII or the ADA, the plaintiff must first exhaust her administrative remedies by filing a charge of discrimination with the EEOC. Melgar v. T.B. Butler Publ'g Co. , 931 F.3d 375, 378–79 (5th Cir. 2019) (per curiam) (citing Price v. Southwestern Bell Telephone Co. , 687 F.2d 74, 77 (5th Cir. 1982) ; Dao v. Auchan Hypermarket , 96 F.3d 787, 789 (5th Cir. 1996) ; Foster v. Nat'l Bank of Bossier City , 857 F.2d 1058, 1060 (5th Cir. 1988) ). In determining whether a plaintiff has exhausted a particular claim, "the scope of an EEOC complaint should be construed liberally." Patton v. Jacobs Eng'g Grp., Inc. , 874 F.3d 437, 443 (5th Cir. 2017) (quoting Pacheco , 448 F.3d at 788 ). "On the other hand, a primary purpose of Title VII is to trigger the investigatory and conciliatory procedures of the EEOC, in attempt to achieve non-judicial resolution of employment...