Case: 19-11364 Document: 00515643390 Page: 1 Date Filed: 11/18/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 18, 2020
No. 19-11364
Lyle W. Cayce
Clerk
Ricky Jones,
Plaintiff—Appellant,
versus
Lubbock County Hospital District, doing business as
University Medical Center,
Defendant—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:18-CV-151
Before Stewart, Duncan, and Wilson, Circuit Judges.
Per Curiam:*
Plaintiff Ricky Jones sued his former employer, Lubbock County
Hospital District, doing business as University Medical Center (“UMC”),
for two alleged violations of the Americans with Disabilities Act (“ADA”),
42 U.S.C. § 12101 et seq. He claimed UMC denied him a reasonable
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 19-11364
accommodation for his breathing disability, then fired him because of that
disability. The district court granted UMC summary judgment on both
claims, but we find that a material fact dispute remains as to the first. We
therefore AFFIRM in part, VACATE in part, and REMAND for further
proceedings on Jones’s reasonable-accommodation claim.
I.
Jones worked at UMC as a respiratory therapist from 1984 to 2017. He
suffers breathing problems from asthma and bronchiectasis and relies on
supplemental oxygen. Beginning in August 2016, he asked the hospital to
accommodate his condition by letting him wear a portable oxygen device
while working. UMC denied this request.
According to Jones, he needed only to wear an 18-inch-long oxygen
tank in an over-the-shoulder harness. But Jones’s supervisor, Robert Lopez,
believed the device would hamper patient care, especially when multiple
workers attended a single patient, or could malfunction. Jones disagreed,
maintaining the device would neither restrict his movements nor impede
proper care. As to concerns about device failure, Jones countered
malfunction was unlikely and, even if it happened, he still could have
completed a full shift.
Jones first requested this accommodation in August 2016. After the
request was denied, he worked for about four days—while wearing the
device—and was able to perform all his duties without issue. Jones then took
a few weeks of leave to regain strength. Around that time, he applied for and
was offered a secretarial position in the hospital. After his leave, though, he
was strong enough to work without oxygen assistance and so declined the
offer. He worked as a therapist for several more months, but after a bout of
pneumonia in January 2017, his condition worsened and required around-
the-clock oxygen. Jones renewed his request to wear the device, was denied,
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and began a second period of leave on January 23, 2017. He then sought other
work around the hospital but found no openings. In March 2017, as his leave
ran out, he made one more unsuccessful accommodation request and then
gave two weeks’ notice.
On March 23, 2017, before the two weeks expired, Jones’s supervisor
fired him over messages he sent to former hospital employees that allegedly
violated UMC’s policy against gossip. Jones had undergone disciplinary
counseling for gossiping in September 2016 and had signed a document
warning that further violations could result in termination. He claimed his
messages did not violate any employment policies and were instead a pretext
to fire him and prevent his return to work if he later became healthy enough
to do so.
Jones timely filed a complaint with the EEOC, which closed its
investigation without a finding of discrimination. He then filed a complaint
in federal district court, alleging two ADA claims and an age discrimination
claim he later dropped. The district court granted UMC summary judgment
on both ADA claims. It found that Jones’s request to wear an oxygen device
was not reasonable, and that UMC was not obligated to provide any other
accommodation, such as a transfer, because Jones had not requested one. It
also held that Jones had failed to show evidence that UMC’s stated reason
for firing him was a pretext for discrimination. Jones timely appealed.
II.
We review a summary judgment de novo, viewing the evidence in the
light most favorable to the nonmoving party. E.E.O.C. v. LHC Grp., 773 F.3d
688, 694 (5th Cir. 2014) (citation omitted). “The 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). Such a dispute exists when the “evidence is such
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that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); LHC Grp.,
773 F.3d at 694. When assessing whether a dispute of material fact exists,
“we consider all of the evidence in the record but refrain from making
credibility determinations or weighing the evidence.” Turner v. Baylor
Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (citing Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).
III.
Jones alleges two violations of the ADA: failure to accommodate his
disability and discriminatory firing. The ADA provides that employers shall
not “discriminate against a qualified individual on the basis of disability in
regard to . . . discharge of employees . . . and other terms, conditions, and
privileges of employment.” 42 U.S.C. § 12112(a). Such discrimination
includes “not making reasonable accommodations to the known physical or
mental limitations of an otherwise qualified individual with a disability.” Id.
§ 12112(b)(5)(A); see LHC Grp., 773 F.3d at 703 n.6 (distinguishing “failure-
to-accommodate” and “disparate treatment” as separate ADA claims). We
address Jones’s two claims in turn.
A.
To prevail on a failure-to-accommodate claim, a plaintiff must prove
three statutory elements: “(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.” Feist v. La., Dep’t of Just.,
Office of the Att’y Gen., 730 F.3d 450, 452 (5th Cir. 2013). The parties dispute
only the third prong: whether UMC failed to make a reasonable
accommodation for Jones’s known disability.
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The ADA does not define “reasonable accommodation” but
illustrates the term with this non-exclusive list of examples:
(A) making existing facilities used by employees readily
accessible to and usable by individuals with disabilities; and
(B) job restructuring, part-time or modified work schedules,
reassignment to a vacant position, acquisition or modification
of equipment or devices, appropriate adjustment or
modifications of examinations, training materials or policies,
the provision of qualified readers or interpreters, and other
similar accommodations for individuals with disabilities.
42 U.S.C. § 12111(9). A plaintiff bears the burden of proving the
reasonableness of an accommodation in his prima facie case. Riel v. Elec. Data
Sys. Corp., 99 F.3d 678, 683 (5th Cir. 1996). Whether a proposed
accommodation is reasonable is generally a fact issue. Id.
We hold that Jones has shown a triable fact issue as to whether UMC
failed to reasonably accommodate his disability by allowing him to use a
portable oxygen device while working. Jones offered evidence that he could
wear the device without interfering with his own work or that of other
caregivers, that malfunction did not pose any risk, and that he used the device
at his job for several days without issue. By contrast, UMC presented
evidence that allowing Jones this accommodation would have interfered with
patient care. The district court’s summary judgment order resolved this
question in UMC’s favor, reasoning that in light of UMC’s concerns about
impeding patient care, Jones had failed to create a genuine fact dispute that
his requested accommodation was reasonable under the circumstances. This
was error. On the record before us, whether the device would have been a
reasonable accommodation was “for the trier of fact.” Riel, 99 F.3d at 683;
see also, e.g., Stokes v. Nielsen, 751 F. App’x 451, 456 (5th Cir. 2018); Hill v.
Assocs. for Renewal in Educ., Inc., 897 F.3d 232, 238–39 (D.C. Cir. 2018).
While Jones primarily relied on his own declaration as evidence, that
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submission is “certainly appropriate for review” on summary judgment. See
E.E.O.C. v. WC&M Enters., 496 F.3d 393, 398 (5th Cir. 2007). We cannot
weigh the evidence or make credibility determinations at this stage. See
Heinsohn v. Carabin & Shaw, P.C., 832 F.3d 224, 245 (5th Cir. 2016). The
district court therefore erred by granting summary judgment on Jones’s
reasonable-accommodation claim. 1
B.
“In a discriminatory-termination action under the ADA, the
employee may either present direct evidence that she was discriminated
against because of her disability or alternatively proceed under the
burden-shifting analysis first articulated in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), a Title VII case.” LHC Grp., 773 F.3d at 694
(citation modified). Direct evidence is “evidence that, if believed, proves the
fact of discriminatory animus without inference or presumption.” Rodriguez
v. Eli Lilly & Co., 820 F.3d 759, 765 (5th Cir. 2016) (citation omitted). Under
the McDonnell Douglas framework, a plaintiff must first make a prima facie
showing of discrimination, which the defendant must then rebut “by
articulating legitimate business reasons for the adverse action.” Id. (citing
LHC Grp., 773 F.3d at 701). If the defendant does so, the plaintiff must then
show those reasons were pretextual, by showing the proffered explanation is
“false or unworthy of credence,” or that his disability was still a “motivating
factor in the decision” to fire him in spite of any other proffered reasons.
LHC Grp., 773 F.3d at 702 (citation omitted). Evidence of pretext must be
1
UMC could have also discharged its duty under the ADA by providing Jones an
alternative accommodation. See, e.g., Griffin v. United Parcel Serv., Inc., 661 F.3d 216, 224
(5th Cir. 2011). The record reflects that UMC offered Jones a different hospital job around
August 2016, but at that time Jones was evidently still able to work as a therapist without
using oxygen during his shifts. By the time of Jones’s later requests for accommodation,
however, it appears from the record that neither this job nor any other was available.
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substantial. Laxton v. Gap Inc., 333 F.3d 572, 579 (5th Cir. 2003). Under
either approach—direct evidence or McDonnell Douglas—Jones’s claim fails.
As direct evidence of discriminatory firing, Jones offers only UMC’s
alleged failure to accommodate. But Jones offers no evidence to connect the
two. His argument would require us to infer, without evidence, that his
eventual firing was connected to his earlier requests for accommodation. But
“[i]f an inference is required for the evidence to be probative as to Appellee’s
discriminatory animus in firing Appellant, the evidence is circumstantial, not
direct.” Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897–98 (5th Cir.
2002).
Applying McDonnell Douglas, the district court correctly held that
UMC had shown a legitimate basis for the firing, which Jones failed to rebut.
UMC documented its reason for Jones’s termination by producing its
employee conduct policy forbidding gossip, its record of the termination with
stated reasons, and its record of Jones’s previous disciplinary history under
that policy. Jones’s only evidence of pretext—his denial that his conduct
amounted to gossip—falls short of the substantial evidence required to prove
pretext. See Laxton, 333 F.3d at 579; see also, e.g., Lyons v. Katy Indep. Sch.
Dist., 964 F.3d 298, 306–07 (5th Cir. 2020). Summary judgment on Jones’s
discriminatory-firing claim was therefore proper.
C.
The parties also dispute on appeal whether Jones properly mitigated
damages after being fired. See, e.g., West v. Nabors Drilling USA, Inc., 330
F.3d 379, 393 (5th Cir. 2003) (citation omitted). The district court did not
reach this affirmative defense because it mistakenly granted summary
judgment on both of Jones’s ADA claims. We decline to address the issue in
the first instance and leave it for the district court to address on remand.
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IV.
For the foregoing reasons, we AFFIRM in part, VACATE in part,
and REMAND for further proceedings.
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