ADA Decisions, Virginia M. Adams, Plaintiff-Appellant v Columbia/HCA of New Orleans, Incorporated, Incorrectly Identified by Plaintiff as Lakeview Regional Medical Center, LLC, Doing Business as Lakeview Regional Medical Center, Defendant-Appellee., U.S. Court of Appeals, Fifth Circuit, 19 ADD ¶19-378, (Mar. 3, 2023)

[Statement of Case]

Opinion

Per Curiam: [1] Plaintiff-Appellant, Virginia M. Adams (“Adams”), filed suit against her former employer, Defendant-Appellee, Lakeview Regional Medical Center (“Lakeview”), alleging employment discrimination in violation of the Americans with Disabilities Act (ADA) and interference with her rights under the Family Medical Leave Act (FMLA). For the reasons discussed below, we AFFIRM the district court's dismissal of Adams's claims under the ADA for discrimination, failure to accommodate, and failure to engage in the interactive process. We VACATE the court's summary-judgment dismissal of Adams's FMLA interference claim and REMAND that claim for further proceedings.

I.

In January of 2018, Lakeview hired Adams in its Laboratory Department as a “Lead Tech.” Adams asserts that before she was hired, she informed Lakeview that she suffers from mast cell disorder, allergies, and asthma. Adams states that throughout 2018 these disabilities got progressively worse, and thus before she became eligible for FMLA leave, she was often late to work due to her disabilities. She asserts that she became eligible for FMLA leave on October 9, 2018. In its answer to Adams's complaint, Lakeview admitted that her FMLA request was approved on October 9. [2]

On October 9, 2018, Adams's supervisor issued her a Performance Improvement Plan (“PIP”) to help her, among other things, report on time to her shifts in compliance with Lakeview's attendance policy. Adams subsequently received a verbal and written disciplinary warning for arriving late to work on the following dates: October 12, 15-18, 22, 26, 29, 30, November 2, 2018, and January 8-9, 2019. Additionally, in October and November of 2018, Adams received warnings and counseling for making two mistakes at the Blood Bank, one of which Lakeview classified as presenting “a grave patient safety concern.” Also in November of 2018, Lakeview suspended Adams for engaging in disrespectful conduct to a co-worker.

On July 25, 2019, Adams's supervisor asked her to work in the Blood Bank. Adams replied that she did not “feel comfortable” working in the Blood Bank because she had taken almost 300 milligrams of Benadryl since she woke up that morning to treat the symptoms of her disability. Adams was sent home after her supervisors determined that if she did not feel comfortable working in the Blood Bank, she could not “perform safely in other parts of the lab.” Following this event, Lakeview conducted an investigation and determined that Adams had violated its Substance Use Policy by failing to notify her supervisor that she had taken an over-the-counter drug that she believed may impair her ability to perform her job. On August 9, 2019, Lakeview terminated Adams's employment based on the July 25 incident, in addition to her previous disciplinary warnings related to her behavior and performance.

On September 29, 2019, Adams filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). The EEOC subsequently issued a “no cause” determination and a right-to-sue letter. Adams thereafter filed the instant action, alleging that Lakeview (1) discriminated against her due to her disability; (2) failed to engage in the ADA's interactive process; (3) failed to provide a reasonable accommodation for her disability; and (4) interfered with her right to FMLA leave.

Lakeview filed a Rule 12(b)(6) motion to dismiss Adams's claims that it failed to engage in the ADA's interactive process and provide a reasonable accommodation. The district court granted Lakeview's motion. Lakeview then moved for summary judgment on Adams's two remaining claims, which the district court also granted. Adams filed a timely notice of appeal as to both judgments, as well as the district court's order denying her motion for leave to file a surreply.

II. [3]

We review de novo the district court's grant of a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) and of a motion for summary judgment under Rule 56. [4]

A.

Adams first challenges the district court's 12(b)(6) [5] dismissal of her accommodation and interactive process claims based on the court's holding that she failed to exhaust those claims before the EEOC. Before filing suit in federal court for a violation of the ADA, a plaintiff must exhaust her administrative remedies, which include the timely filing of a charge of discrimination with the EEOC. [6] The scope of a plaintiff's federal complaint is limited to “discrimination like or related to the [EEOC] charge's allegations,” and “the scope of the EEOC investigation that could reasonably be expected to grow out of the initial charges of discrimination.” [7] A plaintiff's failure to comply with the ADA's exhaustion requirement is grounds for dismissal. [8]

Both of Adams's claims stem from her assertion that Lakeview failed to provide her a reasonable accommodation by not assigning her to a different section of the lab on July 25, and instead sending her home early. Although Adams's EEOC charge of discrimination [9] states that she was directed to go home on July 25, it does not mention that she made any request for an accommodation, such as working in a different section of the lab.

Under this Court's precedent, Adams's charge is “too narrow to have exhausted a claim for failure to accommodate [and failure to engage in the interactive process].” [10] In particular, her charge does not mention that she requested an accommodation on July 25 before being sent home, which is a prerequisite for both of her claims. [11] Accordingly, we find that the scope of the EEOC investigation into Adams's complaint could not reasonably be expected to include her claims for failure to accommodate and engage in the interactive process. [12] Because these claims remain unexhausted, the district court correctly dismissed them pursuant to Rule 12(b)(6).

B.

Adams also appeals the district court's order granting summary judgment in favor of Lakeview on her two exhausted claims for discrimination based on her disability and FMLA interference. [13]

As to her discrimination claim under the ADA, Adams relies on circumstantial evidence of discriminatory intent, and thus the familiar McDonnell Douglas [14] burden-shifting framework applies. Under that framework, a plaintiff has the initial burden of establishing a prima facie case of discrimination. [15] If the plaintiff establishes the four elements of a prima facie case, the burden of production shifts to the employer to provide a “legitimate, nondiscriminatory reason” for the plaintiff's termination. If the employer meets this burden, the burden then shifts back to the plaintiff to show by a preponderance of the evidence that the employer's articulated reason is pretext for discrimination. [16] Here, the district court assumed that Adams established a prima facie case of discrimination, but held that Lakeview had articulated a legitimate, nondiscriminatory reason for her termination: Adams's violation of the Substance Use Policy. [17] The court then determined that because Adams failed to offer sufficient evidence that Lakeview's proffered reason was pretextual, summary judgment in favor of Lakeview was appropriate. We agree.

Adams offers two arguments in support of her assertion that Lakeview's proffered explanation is pretextual. Specifically, she contends that Lakeview has offered inconsistent reasons for her termination and that she suffered disparate treatment. We find that neither of Adams's arguments presents “substantial evidence” of pretext. [18]

First, Lakeview has consistently stated it terminated Adams because of the events of July 25, 2018, involving her violation of Lakeview's Substance Abuse Policy and related refusal to work in the Blood Bank. Second, Adams has not presented evidence of proper comparators for the purposes of establishing disparate treatment. In order to establish disparate treatment, a plaintiff must show that “the misconduct for which she was discharged was nearly identical to that engaged in by a[n] employee [not within her protected class] whom [the company] retained.” [19] However, “employees who have different work responsibilities or who are subjected to adverse employment actions for dissimilar violations are not similarly situated.” [20]

Here, Adams points to the same comparators that the district court correctly concluded were not sufficiently similar to Adams to establish pretext. In particular, Adams remains unable to point to a would-be comparator that shared a similar history of violating Lakeview's Substance Use Policy on top of existing disciplinary warnings for patient safety and behavioral violations. [21] Accordingly, we agree with the district court that Adams has not presented substantial evidence of pretext, such that a reasonable factfinder could conclude that Lakeview's proffered explanation is false.

For the first time on appeal, Adams asserts that even if she is unable to establish pretext, she can still survive summary judgment by asserting that her employer had mixed motives for terminating her. Because Adams did not raise her mixed-motive argument in her complaint or opposition to Lakeview's motion for summary judgment, she has waived it. [22] Thus, we affirm the district court's judgment as it pertains to Adams's ADA discrimination claim.

Adams also appeals the district court's dismissal of her FMLA interference claim. To establish a claim for FMLA interference, an employee must show that the employer “interfered with, restrained, or denied her exercise or attempt to exercise FMLA rights, and that the violation prejudiced her.” [23] The term “interfered” includes “not only refusing to authorize FMLA leave, but discouraging an employee from using such leave.” [24]

Adams alleges that Lakeview interfered with her FMLA rights by “denying her the right to use FMLA leave for tardy occurrences caused by her serious health condition.” In support of this claim, Adams argues that her FMLA intermittent leave was approved on October 9, 2018, but that on that same day her supervisor wrote on her PIP that “FMLA [leave is] not to be applied to Tardy occurrences.” Adams contends that her supervisor's comment discouraged her from seeking leave for her subsequent tardy arrivals, and that she was prejudiced by this interference because she received verbal and written disciplinary actions for her late arrivals in October, November, and January.

In response, Lakeview contends that Adams was not entitled to leave until her FMLA intermittent leave was approved on November 6, 2018, and therefore it had no choice but to consider her tardy arrivals before then as violations of its attendance policy. However, as Adams points out, Lakeview admitted in its answer to Adams's complaint that her FMLA request “was approved beginning on October 9, 2018.”

In granting Lakeview's summary judgment motion, the district court addressed only one date on which Adams alleges Lakeview denied her FMLA benefits, and it did not address the impact of her supervisor's comment that she could not use her FMLA leave for her tardy arrivals. We vacate and remand Adams's FMLA interference claim to allow the district court the opportunity to consider in the first instance whether Adams's supervisor's comment would have discouraged a reasonable person from taking FMLA leave on the additional days she was marked tardy after her FMLA leave was approved. [25]

III.

For the reasons above, the district court's judgment is AFFIRMED as to the dismissal of Adams's claims under the ADA for discrimination, failure to accommodate, and failure to engage in the interactive process. As to Adams's claim for FMLA interference, however, the district court's judgment is VACATED AND REMANDED for further proceedings.