Case: 16-30658 Document: 00514046770 Page: 1 Date Filed: 06/23/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-30658
Fifth Circuit
FILED
June 23, 2017
RENEE CREDEUR, Lyle W. Cayce
Clerk
Plaintiff - Appellant
v.
STATE OF LOUISIANA, Through the Office of the Attorney General,
Defendant - Appellee
Appeal from the United States District Court
for the Middle District of Louisiana
Before REAVLEY, ELROD, and GRAVES, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
Renee Credeur was employed by the Office of Attorney General for the
State of Louisiana (“DOJ”) as a litigation attorney. During the course of her
employment, she developed serious health problems due to complications from
a kidney transplant. On account of her illness, the DOJ granted her temporary
accommodations to work from home with the goal of eventually reintegrating
her into the office. After several months of telecommuting, the DOJ denied
Credeur’s continuing request to work from home, but provided an alternative
accommodation with certain conditions. Credeur rejected this alternative
accommodation and renewed her request to work from home. The DOJ denied
her request. Credeur sued the DOJ for failure to accommodate, harassment,
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and retaliation in violation of the American with Disabilities Act (“ADA”) and
Louisiana Employment Discrimination Law (“LEDL”). She appeals the
district court’s grant of summary judgment in the DOJ’s favor. Because there
is no genuine issue of material fact as to whether Credeur has established a
prima facie case on any of her disability-based claims, we AFFIRM.
I. BACKGROUND
From 2008 to 2014, Credeur worked as an assistant attorney general in
the Medical Malpractice Section of the DOJ’s Litigation Division. Credeur
underwent a kidney transplant in May 2010 and was granted an ADA
accommodation to work from home for approximately six months. In 2013,
Credeur experienced additional health problems due to complications from the
kidney transplant. From March to August 2013, Credeur utilized leave under
the Family and Medical Leave Act (“FMLA”). After she exhausted FMLA
leave, Credeur requested the accommodation of working from home. She
provided the DOJ with a medical evaluation by her physician, Dr. Slakey, who
was treating her for kidney transplant complications. Dr. Slakey
recommended that Credeur “begin working from home doing as much as
possible and slowly incorporate herself back to office hours as she gains
strength and endurance.”
The DOJ granted Credeur an accommodation to work from home,
memorialized in a memorandum dated October 13, 2013 (the “Strategy
Memo”). The Strategy Memo noted the DOJ’s intent to comply with the ADA
by providing Credeur “reasonable accommodations as necessary throughout
her recovery” with the goal of eventual “reintegration of her normal work hours
and duties.” It obligated Credeur to communicate regularly with her
supervisor, Glen Reynaud, regarding her work product and hours and provide
him with medical updates every 30 days. Credeur did not provide any medical
updates until December 11, 2013.
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In January 2014, the DOJ emailed Credeur with an “ADA Supplemental
Request for Medical Status,” stating that “specific measures will have to be
taken to account for [Credeur’s] hours worked and leave requested” and
providing a certification for Credeur to fill out and submit “before the end of
each pay period.” In response to this request, Credeur provided the DOJ with
evaluations from three different physicians, Drs. Slakey, Weitz, and Ward.
The evaluations conflicted with respect to Credeur’s capacity to work in the
office. Both Dr. Slakey and Dr. Weitz stated that Credeur could begin working
in the office—Dr. Slakey released Credeur to work up three to four hours a day
and Dr. Weitz said that she could work in the office “as tolerated.” Dr. Ward,
on the other hand, stated that Credeur would not be able to work in the office
at all for six months.
Reneé Free, the DOJ’s Director of Administrative Services, emailed
Credeur on February 27, 2014, seeking clarity regarding the conflicting
evaluations. The email stated:
Although the Doctor’s evaluations conflict in some areas, it
appears that Dr. Ward will not release you to return to the office
for six months. Your initial request to work from home was
granted with the specific goal of reintegration of your normal office
work hours and duties. Unfortunately, it is not possible for a
litigation attorney to work from home on a long term basis.
Unless we receive an updated medical status evaluation from your
current treating physical rehabilitation physician by Thursday,
March 13, 2014, we will have no alternative but to reevaluate your
employment with the Department of Justice considering your
inability to perform the essential job functions of a litigation
attorney.
Credeur emailed a response, explaining that the DOJ could disregard Dr.
Ward’s evaluation because his evaluation was “unreasonable” and she had
discharged him as her doctor. She added that she received a release from her
surgeon “to work part time initially and work up my endurance,” which was
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improving, and that she was “allowed to take depositions, fly for depositions
and attend hearings and trials.”
Free met with Credeur on March 3, 2014. Free summarized the meeting
in an email, which stated that Credeur was required “to work up to 3-4 hours
per day in the office (as tolerated)” and to “not work from home.” Credeur was
directed to complete leave slips for the remaining hours she was not able to
work in the office. Credeur’s supervisor, Reynaud, then reassigned some of
Credeur’s cases because she was having trouble keeping up with her caseload
and in an effort to accommodate her reduced work schedule. Credeur’s
difficulty fulfilling other administrative tasks during her work-at-home
accommodation was also a concern to the DOJ. Among other things, Credeur
failed to complete certain safety training exercises that all DOJ attorneys were
required to perform periodically.
Credeur did not return to the office until March 20, 2014, at which time
the DOJ presented her with a “Last Chance Agreement” (“Last Chance
Agreement” or “Agreement”) to inform her of certain deficiencies in her
performance and the corrective actions required of her. 1 Among other things,
the Agreement cited her failure to adhere to the DOJ’s office hours policy and
to submit leave slips for the hours she did not work, her email correspondence
reflecting “unprofessional” behavior toward her superiors, and substandard
billing practices, such as block billing. The Agreement listed eight required
actions, including, “You will not work from home,” and “The hours you
work/bill will be in the office between the hours of 8:30 am and 5:00 pm unless
1 According to the deposition of Sonia Mallett, the DOJ’s Director of Litigation
Division, the purpose of a Last Chance Agreement is not a disciplinary action, but a device
used by the DOJ to make an employee aware of performance issues so that they can be
corrected. Mallett and Free testified that the DOJ has used Last Chance Agreements in the
past with other employees, including attorneys.
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authority is granted otherwise.” The Agreement stated that the consequences
of failure or refusal to comply would be cause for termination. Credeur refused
to sign the Agreement, despite repeated requests from Reynaud to do so and
reminders that signing was “not optional.”
Credeur did not return to work. Instead, she requested and received
FMLA leave. 2 On April 7, 2014, while on leave, Credeur emailed the DOJ that
she had a contagious infection following a hospitalization and requested that
she be able to work from home. Credeur asked to work from home, rather than
remain on leave, because her files were getting behind and she needed to get
them caught up. Two weeks later, the DOJ received a medical evaluation from
Dr. Killackey, which stated that Credeur could not work in the office or attend
court hearings, conferences, and depositions until she was cleared of infection,
which would be reevaluated on May 20, 2014. The DOJ denied Credeur’s
request to work from home, but allowed her to take unpaid leave after her
FMLA leave expired in June.
On August 12, 2014, Free sent Credeur a letter formally denying her
request to work from home and explaining that DOJ litigation attorneys
“cannot work from home on a long term basis” as it “places considerable strain
on supervisors and staff.” The letter further stated: “Considering that you are
not allowed to attend hearings, conferences or depositions, we have
accommodated you by reassigning cases which will require any of these
activities.” Finally, the letter reiterated that Credeur had failed to provide the
2 Credeur disputes that she received FMLA leave and contends instead that she was
placed on leave without pay (“LWOP”). Although the record is somewhat unclear, it appears
that she was initially granted FMLA leave, but that the DOJ realized at some later point
that she was in fact ineligible because she had not worked sufficient hours in the previous
year to be entitled to it. At that point, the DOJ retroactively changed Credeur’s leave status
from FMLA to LWOP.
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requisite medical evaluations every 30 days and requested that she submit an
updated “medical excuse/evaluation” by August 26, 2014.
On August 22, 2014, Credeur provided the DOJ with a medical release
to work at the office without restrictions. She returned to the office and
remained employed with the DOJ until her voluntary resignation on December
31, 2014.
On August 20, 2014, two days before she returned to work, Credeur filed
suit against the DOJ in Louisiana state court. The DOJ removed the case to
federal court and subsequently moved for summary judgment. The district
court granted summary judgment to the DOJ. 3 On Credeur’s failure to
accommodate claim, the district court found that Credeur was not a “qualified
individual” within the meaning of the ADA because she could not perform an
essential function of her job—regular attendance in the office. Alternatively,
the district court held that “no reasonable juror could find that the DOJ failed
to reasonably accommodate Credeur’s known limitations.” On Credeur’s
harassment claim, the district court found that the conduct complained of did
not constitute harassment, or, even if such conduct was harassment, it was not
sufficiently severe or pervasive to alter the terms or conditions of employment.
Finally, the district court dismissed the retaliation claim because the evidence
did not demonstrate that the DOJ took any adverse action against Credeur.
After entry of final judgment in favor of the DOJ, Credeur timely appealed.
3 Although the district court’s order analyzed only Credeur’s ADA claims, it also
dismissed Credeur’s claims under the LEDL, noting that the same analysis applied because
Louisiana courts look to federal employment discrimination law for guidance in interpreting
the State’s anti-discrimination statute.
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II. DISCUSSION
A. Standard of Review
We review a district court’s grant of summary judgment de novo.
E.E.O.C. v. LHC Group, Inc., 773 F.3d 688, 694 (5th Cir. 2014). 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 of material fact exists “if the
evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Rogers v. Bromac Title Servs., LLC, 755 F.3d 347, 350 (5th
Cir. 2014). All facts and inferences are construed in the light most favorable
to the nonmoving party. Id.
B. Failure to Accommodate Claim
“Under the ADA, it is unlawful for an employer to fail to accommodate
the known limitations of an employee’s disability.” Griffin v. United Parcel
Serv., Inc., 661 F.3d 216, 224 (5th Cir. 2011). A prima facie claim for failure to
accommodate requires 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) (emphasis omitted). There is no
dispute that Credeur has a disability and that the DOJ knew of her disability
and the associated limitations. At issue is whether Credeur is a “qualified”
individual within the meaning of the ADA. If she is not, our inquiry ends. If
she is, we must determine whether the DOJ failed to make reasonable
accommodation for her disability.
To be “qualified” under the ADA, Credeur must be able to “perform the
essential functions” of an attorney in the DOJ’s Litigation Division “with or
without reasonable accommodation.” 42 U.S.C. § 12111(8). “Essential
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functions” are “fundamental”, as opposed to “marginal”, job duties, 29 C.F.R.
§ 1630.2(n)(l), such that a job is “fundamentally alter[ed]” if an essential
function is removed, 29 C.F.R. § Pt. 1630, app. at 397. “Fact-finders must
determine whether a function is ‘essential’ on a case-by-case basis.” LHC Grp.,
Inc., 773 F.3d at 698. The text of the ADA indicates where this inquiry should
begin:
For the purposes of this subchapter, consideration shall be given
to the employer’s judgment as to what functions of a job are
essential, and if an employer has prepared a written description
before advertising or interviewing applicants for the job, this
description shall be considered evidence of the essential functions
of the job.
42 U.S.C. § 12111(8).
Further, the regulations promulgated by the Equal Employment
Opportunity Commission (“EEOC”) list seven non-exhaustive factors to guide
the essential-function inquiry:
(i) The employer’s judgment as to which functions are essential;
(ii) Written job descriptions prepared before advertising or
interviewing applicants for the job;
(iii) The amount of time spent on the job performing the function;
(iv) The consequences of not requiring the incumbent to perform
the function;
(v) The terms of a collective bargaining agreement;
(vi) The work experience of past incumbents in the job; and/or
(vii) The current work experience of incumbents in similar jobs.
29 C.F.R. § 1630.2(n)(3).
Both the statute and regulations indicate that we must give greatest
weight to the “employer’s judgment.” It is the only evidence the statute
requires us to consider, absent a written job description. Moreover, the EEOC
explains that “the inquiry into essential functions is not intended to second
guess an employer’s business judgment with regard to production standards
. . . nor to require employers to lower such standards.” 29 C.F.R. § Pt. 1630,
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app. at 398. The DOJ maintains that an essential function of Credeur’s job as
a litigation attorney is regular office attendance. Credeur disagrees. The
question is whether Credeur’s subjective judgment created a genuine dispute
of material fact to overcome the DOJ’s motion for summary judgment. On the
record before us, we conclude that it did not.
As an initial matter, there is general consensus among courts, including
ours, that regular work-site attendance is an essential function of most jobs.
See, e.g., Hypes on Behalf of Hypes v. First Commerce Corp., 134 F.3d 721, 727
(5th Cir. 1998) (per curiam) (collecting cases); E.E.O.C. v. Ford Motor Co., 782
F.3d 753, 761 (6th Cir. 2015) (en banc) (“[The] general rule [is] that, with few
exceptions, ‘an employee who does not come to work cannot perform any of his
job functions, essential or otherwise.’” (quoting EEOC v. Yellow Freight Sys.,
Inc., 253 F.3d 943, 948 (7th Cir. 2001) (en banc))). This is especially true when
the position is interactive and involves a significant degree of teamwork.
Hypes, 134 F.3d at 727 (“[T]eam work under supervision generally cannot be
performed at home without a substantial reduction in the quality of the
employee’s performance.” (alteration in original) (quoting Vande Zande v. State
of Wis. Dept. of Admin., 44 F.3d 538, 544 (7th Cir. 1995))); accord Ford Motor
Co., 782 F.3d at 761 (“[M]ost jobs require the kind of teamwork, personal
interaction, and supervision that simply cannot be had in a home office
situation.” (quoting Rauen v. U.S. Tobacco Mfg. L.P., 319 F.3d 891, 896 (7th
Cir. 2003))).
The EEOC’s informal guidance on teleworking reinforces this point. The
agency recognizes that for some jobs, the essential duties can only be performed
in the workplace. Teleworking may not be feasible, for example, if the job
requires “face-to-face interaction and coordination of work with other
employees”, “in-person interaction with outside colleagues, clients, or
customers”, or “immediate access to documents or other information located
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only in the workplace.” EEOC Fact Sheet, Work At Home/Telework as a
Reasonable Accommodation (Oct. 27, 2005),
http://www.eeoc.gov/facts/telework.html. Additionally, “the employer’s ability
to supervise the employee adequately” is another factor in determining
whether a work-at-home accommodation is reasonable. Id. Direct employee
supervision is easiest when the employee shows up regularly at work. It is
much harder to do remotely, particularly when the employee never comes to
the office at all.
Credeur, however, would have her job be the exception. By her account,
she had successfully worked from home on several prior occasions before the
DOJ “suddenly changed course” in early March 2014, requiring her to work
part-time in the office and ordering her to do no work from home. Credeur
argues that by crediting the DOJ’s statements and rejecting her testimony, the
district court engaged in impermissible credibility determinations and
weighing of the evidence.
While we are mindful that employees can be good sources of information
regarding their day-to-day activities and the prerequisites for success on the
job, “[a]n employee’s unsupported testimony that she could perform her job
functions from home” does not create a genuine dispute of fact to preclude
summary judgment. Ford Motor Co., 782 F.3d at 763–64; see also Rodriguez
v. Mrs. Baird’s Bakery, 111 F.3d 893 (5th Cir. 1997) (unpublished) (rejecting
notion that an employee’s testimony regarding his subjective belief that
discrimination occurred can without more create a genuine dispute of fact).
In EEOC v. Ford Motor Co., the Sixth Circuit observed that “we do not
‘allow employees to define the essential functions of their positions based solely
on their personal viewpoint and experience.’” 782 F.3d at 764. If that were not
the case, “every failure-to-accommodate claim involving essential functions
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would go to trial because all employees who request their employer exempt an
essential function think they can work without that essential function.” Id.
Furthermore, unlike the employer’s judgment, which is explicitly
mentioned in the statute and EEOC regulations, “[n]either the statute nor
regulations nor EEOC guidance instructs courts to credit the employee’s
opinion about what functions are essential.” Id. True, the regulations present
a non-exhaustive list of factors to consider, but they all relate to the employer’s
judgment in some fashion. The first two restate the statutory considerations,
which directly pertain to the employer’s judgment. 29 C.F.R. § 1630.2(n)(3)(i)–
(ii). The remaining five fall into the category of circumstantial evidence of an
employer’s policies and practices pointing to a function being essential, or not.
29 C.F.R. § 1630.2(n)(3)(iii)–(vii). The amount of time spent performing the
function demonstrates whether, in practice, that function is essential to the
job. The same goes for the work experience of past incumbents in the job or
current incumbents in similar jobs. Evidence of the employer’s stated policies
can be found in the terms of a collective bargaining agreement. And the
consequences of not performing the function may be severe both as a practical
matter and as a matter of company policy. Principles of statutory construction
suggest that the employee’s personal judgment, which is unlike any other item
on this list, is not the kind of evidence that a court should consider. See Magee
v. Coca–Cola Refreshments USA, Inc., 833 F.3d 530, 534 (5th Cir. 2016) (“[T]he
canon of ejusdem generis instructs that ‘when a general word or phrase follows
a list of specifics, the general word or phrase will be interpreted to include only
items of the same class as those listed.’”), petition for cert. filed (No. 16-668).
Of course, courts should not give blind deference to an employer’s
judgment, but should instead evaluate the employer’s words alongside its
policies and practices. See Ford Motor Co., 782 F.3d at 765–66. But the
evidence of the DOJ’s policies and practices also point to regular work-site
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attendance being an essential function of Credeur’s job. The DOJ’s written
correspondence with Credeur prior to this litigation demonstrates a policy of
requiring regular on-site attendance from litigation attorneys. For example,
in a February 27, 2014 email to Credeur, the DOJ’s Director of Administrative
Services, Reneé Free, stated, “Unfortunately, it is not possible for a litigation
attorney to work from home on a long term basis.” Free reiterated the DOJ’s
policy in her August 12, 2014 letter, advising Credeur that “Litigation
attorneys in the Attorney General’s Office are not allowed to work from home
except on rare occasions and only on a temporary basis.”
Furthermore, the testimony of Credeur’s supervisors describe the role of
a medical malpractice litigation attorney as interactive and team-oriented, two
factors that make it more likely that office attendance is essential to a job.
Credeur’s supervisor, Reynaud, said that he thought a DOJ litigation attorney
could work from home for a limited amount of time, but not on a long-term
basis, given the interactive nature of the position. Special Litigation Counsel
David Sanders testified:
[DOJ litigators] work as a team. A defense of a lawsuit is a team
effort by the attorney, by the paralegal, by the secretary. It’s
bouncing ideas off our colleagues. It’s discussing strategy with the
Section Chief. It’s writing requests for settlement authority and
discussing them with all of the above.
Credeur emphasizes that Sanders also said that several responsibilities of a
litigation attorney can be performed outside of the office. That fact does not
negate the interactive aspects of Credeur’s job. Nor does it account for the need
for day-to-day coordination with supervisors and staff and for adequate
supervision of Credeur’s work and the hours she worked, which Reynaud
testified was more difficult to accomplish when Credeur was working at home.
Credeur unilaterally declares that there were no problems resulting
from her working at home and that her supervisors were always satisfied with
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her work. But the record demonstrates that her continuous absence created a
strain on the office. Even Credeur concedes that her work was getting behind.
Indeed, it was for this reason that Credeur renewed her request to work from
home in April 2014. Reynaud testified that many of Credeur’s cases had
pressing deadlines and required immediate attention that Credeur was unable
to give. As a result, several of her cases had to be reassigned to other attorneys.
In addition, Credeur was neglecting certain administrative tasks and failing
to adequately account for her time, an issue with potentially significant
repercussions for the DOJ as a public entity with fiscal accountability.
Credeur’s citations to the record do not create any genuine disputes of
material fact. She singles out various statements in the depositions of DOJ
personnel that she argues show inconsistency in the DOJ’s practices. But the
DOJ refutes her allegations, maintaining that she either misconstrues the
testimony or reads it out of context. For example, Credeur argues that the
Director of DOJ’s Litigation Division, Sonia Mallett, testified that she “works
from home, albeit rarely in her case.” But Mallett’s main point was that she
sometimes worked from home because she considers herself always to be on
call, in addition to, not in lieu of, regular office attendance. Credeur also
contends that another civil division attorney, Billy Belsom, worked from home
while his wife attended medical school in another state. Even if that were the
case, Belsom was not in the DOJ’s Litigation Division and therefore is not a
similarly situated comparator. See Lee v. Kansas City S. Ry. Co., 574 F.3d 253,
260 (5th Cir. 2009) (“[W]e require that an employee who proffers a fellow
employee as a comparator demonstrate that the employment actions at issue
were taken ‘under nearly identical circumstances.’” This requires, among
other things, that the comparator shares “the same job or responsibilities.”).
The interactive aspects of Credeur’s job are litigation-specific. And Credeur
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could not identify any other litigation attorneys that the DOJ permitted to
work from home on a long-term basis.
An increasing number of employers have policies permitting
telecommuting under certain circumstances. Construing the ADA to require
employers to offer the option of unlimited telecommuting to a disabled
employee would have a chilling effect. Rather than offer such benefits,
companies would tighten their telecommuting policies to avoid liability. See
Ford Motor Co., 782 F.3d at 765. The ADA does not require an employer to
“reallocate essential functions” to accommodate an employee with a disability.
29 C.F.R. § Pt. 1630, app. at 399. The employee must first demonstrate that
she is a “qualified” individual, i.e., that she can perform the essential functions
of her job unaided or with the assistance of a reasonable accommodation. Id.
Credeur has not. Therefore, the DOJ was entitled to summary judgment on
her failure to accommodate claim.
C. Disability-Based Harassment Claim
Credeur claims that she was harassed on account of her disability. In
Flowers v. S. Reg’l Physician Servs. Inc., 247 F.3d 229, 232–35 (5th Cir. 2001),
we recognized that a plaintiff may bring a disability-based harassment claim
under the ADA. To establish a prima facie case of disability-based harassment,
a plaintiff must demonstrate:
(1) that she belongs to a protected group; (2) that she was subjected
to unwelcome harassment; (3) that the harassment complained of
was based on her disability or disabilities; (4) that the harassment
complained of affected a term, condition, or privilege of
employment; and (5) that the employer knew or should have
known of the harassment and failed to take prompt, remedial
action.
Id. at 235–36 (quoting McConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 558,
563 (5th Cir. 1998) (assuming without deciding that such a cause of action
exists)). Further, the “harassment must be sufficiently pervasive or severe to
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alter the conditions of employment and create an abusive working
environment.” Id. at 236. In determining whether a work environment is
abusive, we consider the entirety of the evidence in the record, including “the
frequency of the discriminatory conduct, its severity, whether it is physically
threatening or humiliating, or a mere offensive utterance, and whether it
unreasonably interferes with an employee’s work performance.” Id. (quoting
Shepherd v. Comptroller of Public Accounts, 168 F.3d 871, 874 (5th Cir. 1999)).
The district court determined that the conduct Credeur described was
not harassment, and that even if such conduct was harassment, it was not
sufficiently severe or pervasive to create an abusive working environment. We
agree.
Credeur claims the following conduct was harassment: (1) being ordered
to attend the meeting with Free on March 3, 2014; (2) the requirement that
she work at least three to four hours in the office and to not work from home;
(3) criticism of her work performance; (4) threats of termination; (5) asking her
“to sign false payroll documents;” and (6) being forced to take leave without
pay (“LWOP”) instead of FMLA. Credeur contends that these instances of
harassment were so significant that they negatively impacted her physical and
psychological health.
Considered against the record as a whole, this conduct is not the type
that courts have found to constitute harassment, and certainly not harassment
that is sufficiently severe or pervasive to create a hostile work environment.
Criticism of an employee’s work performance, such as that documented in the
Last Chance Agreement, and even threats of termination do not satisfy the
standard for a harassment claim. See, e.g., Kumar v. Shinseki, 495 F. App’x
541, 543 (5th Cir. 2012) (criticism in the workplace and threats to employee’s
job did not constitute actionable harassment). Particularly where, as here, the
record demonstrates deficiencies in the employee’s performance that are
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legitimate grounds for concern or criticism. It is also significant that none of
the DOJ’s actions were “physically threatening or humiliating” or even
offensive. Flowers, 247 F.3d at 236. In Flowers, the employer’s conduct toward
the employee radically changed her working conditions after it was discovered
that she had contracted HIV. Her supervisor, who had been a close friend,
ceased socializing with Flowers, intercepted her phone calls, and eavesdropped
on her conversations. Id. at 236–37. The president of the company, with whom
Flowers “used to get along very well” became distant, avoided her in the
workplace, and subjected her to vulgar sexual comments. Id. at 237. These
were humiliating and offensive ad hominem attacks that had no rational
relation to Flowers’s work performance. The conduct Credeur identifies is not
at all analogous.
Credeur also complains of the conditions that the DOJ imposed on her
through the process of fashioning a reasonable accommodation for her
situation. Credeur was called into a meeting in March 2014 to discuss her
ongoing absence from the office and certain actions the DOJ required of her
from that point forward. During this meeting, Credeur was told that she
needed to work up to three to four hours a day in the office (as tolerated) and
to not work from home. These conditions were part of the DOJ’s effort to
provide Credeur with a reasonable accommodation, one that was tailored to
her doctors’ orders while ensuring that she could accomplish the essential
functions of her job. “The ADA provides a right to reasonable accommodation,
not to the employee’s preferred accommodation.” Griffin, 661 F.3d at 224.
Moreover, although the DOJ previously allowed Credeur to work from home,
it always expressed the intention that the accommodation would be temporary
with the goal of eventual “reintegration of her normal work hours and duties.”
The DOJ was under no obligation to continue that accommodation indefinitely.
See Rogers v. Int’l Marine Terminals, Inc., 87 F.3d 755, 759–60 (5th Cir. 1996)
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(“[R]easonable accommodation does not require [an employer] to wait
indefinitely for [the employee’s] medical conditions to be corrected.”
(alterations in original)); accord Silva v. City of Hidalgo, Tex., 575 F. App’x 419,
423 (5th Cir. 2014).
Credeur contends that these new conditions altered the terms and
conditions of her employment, including her compensation; however, the
critical question is whether the altered conditions of her employment created
an abusive work environment. See Flowers, 247 F.3d at 236. An employer’s
imposition of reasonable work-related conditions to ease an employee’s
transition back to the office after an illness does not constitute actionable
harassment. Gowesky v. Singing River Hosp. Sys., 321 F.3d 503, 510 (5th Cir.
2003) (employer’s conditions on employee’s return to work post-illness were not
harassment). Furthermore, “[a] disabled employee has no right to a promotion,
to choose what job to which he will be assigned, or to receive the same
compensation as he received previously.” Griffin, 661 F.3d at 224.
Credeur’s reference to being forced “to sign false payroll documents” is
ostensibly based on the DOJ’s request that she submit leave slips for the hours
she did not work in the office, for which she was no longer compensated.
Credeur asserts that she continued to do work from home, despite no longer
being compensated for it. That was Credeur’s choice, and not any coercive
pressure from the DOJ to submit fraudulent payroll documents. Finally, as
for being forced onto LWOP, this appears to have been a result of the DOJ
discovering that Credeur was in fact ineligible by law to receive FMLA,
although it had erroneously granted it to her. This is not harassment.
Credeur may have perceived these conditions to be onerous and may
subjectively have felt singled out in being required to fulfill them. Her altered
accommodation may have even negatively impacted her physical and
psychological health. An employee’s “subjective physical and emotional
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reactions” to her employer’s conduct, however, “do not establish that the work
environment would have been perceived as hostile or abusive by a reasonable
employee.” Kumar, 495 F. App’x at 543. Credeur’s attempts to manage a
serious illness while maintaining her employment are admirable. But the
difficulties Credeur experienced in the process do not convert her employer’s
actions into harassment sufficient to create a hostile work environment.
D. Retaliation Claim
Credeur also asserts that many of the above-mentioned actions were
taken in retaliation for her protected activity. To prevail on a retaliation claim,
Credeur must prove: (1) she engaged in an activity protected by the ADA; (2)
an adverse employment action occurred; and (3) a causal connection exists
between the protected act and the adverse action. Seaman v. CSPH, Inc., 179
F.3d 297, 301 (5th Cir. 1999).
Much of the foregoing analysis regarding Credeur’s allegations of
harassment are equally applicable here. For example, Credeur alleges that
the DOJ’s criticism of her work and threats of termination for failure to comply
with performance improvement expectations, in particular as conveyed in the
Last Chance Agreement, were retaliatory adverse actions. Chastisement by
superiors, however, “do[es] not rise to the level of material adversity” that
distinguishes an adverse employment action from “‘petty slights, minor
annoyances, and simple lack of good manners’ that the Supreme Court has
recognized are not actionable retaliatory conduct.” Stewart v. Mississippi
Transp. Comm’n, 586 F.3d 321, 332 (5th Cir. 2009) (quoting Burlington
Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)). Furthermore,
the DOJ represents that the Last Chance Agreement is not a disciplinary
action, but rather a performance improvement device intended to make an
employee aware of performance issues so that they can be corrected. The
record demonstrates that Credeur suffered no disciplinary actions flowing from
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the Last Chance Agreement, despite refusing to sign it and abide by its terms.
Nor was Credeur terminated by the DOJ. She voluntarily resigned several
months after receiving the Agreement. 4 On these facts, we cannot say the
district court erred in determining that the Agreement was not the kind of
materially adverse action that “might have dissuaded a reasonable worker
from making or supporting a charge of discrimination.” White, 548 U.S. at 68.
As discussed above, the conditions that required Credeur to come into
the office for three to four hours a day (as tolerated) and to not work from home
were part of the reasonable accommodation the DOJ offered after it determined
that Credeur’s indeterminate telecommuting situation was no longer feasible.
Even assuming arguendo that these conditions constituted adverse
employment actions, there is no evidence in the record that they were
retaliatory. Instead, they were based on the medical evaluations of Credeur’s
treating physicians, who stated that Credeur would be able to work in the office
for three to four hours a day, as tolerated. And we understand the instruction
that she not work from home to connote merely that the DOJ would no longer
compensate Credeur for any work she did at home. A reasonable
accommodation may include a “part-time or modified work schedule[],” 29
C.F.R. § 1630.2(o)(2)(ii), but it does not entitle the employee to continue
receiving the same compensation or benefits she was receiving without the
accommodation. Griffin, 661 F.3d at 224. We also do not perceive anything
retaliatory about Credeur’s placement on LWOP. Although placing an
employee on unpaid administrative leave may, depending on the
circumstances, constitute a retaliatory adverse action, see Stewart, 586 F.3d at
332, there is no evidence of retaliation here. Credeur requested the leave
4 Credeur does not contend that her resignation constituted a constructive discharge.
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herself and the transfer of her status from FMLA leave to LWOP was due to
her ineligibility for FMLA leave.
The record simply does not support an inference that any of the DOJ’s
actions were taken in retaliation for Credeur’s protected activity.
III. CONCLUSION
For the foregoing reasons, the judgment appealed is AFFIRMED.
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