     Case: 16-30667        Document: 00514024570         Page: 1     Date Filed: 06/07/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit


                                        No. 16-30667                           FILED
                                                                            June 7, 2017
                                                                          Lyle W. Cayce
VERA CLAIBORNE,                                                                Clerk

                Plaintiff - Appellant

v.

RECOVERY SCHOOL DISTRICT,

                Defendant - Appellee




                     Appeal from the United States District Court
                         for the Middle District of Louisiana
                               USDC No. 3:14-CV-483


Before JONES and OWEN, Circuit Judges, and ENGELHARDT, District
Judge. *

KURT D. ENGELHARDT, District Judge:**

      Appellant Vera Claiborne (Claiborne) appeals an adverse summary
judgment dismissing with prejudice her claims asserted against her former



      *   Chief Judge of the Eastern District of Louisiana sitting by designation.
      ** Pursuant to 5TH CIR. R. 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not be published and is not precedent except under the limited circumstances set forth in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 CIR. R. 47.5.4.
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                                       No. 16-30667
employer, Appellee Recovery School District (RSD), under the Americans with
Disabilities Act (ADA), 42 U.S.C. § 12101, et seq., and Louisiana Revised
Statutes 23:301, et seq., and 23:1361(B).               For the following reasons, we
AFFIRM the district court’s judgment.
       FACTUAL BACKGROUND AND PROCEDURAL HISTORY
       Claiborne began working for RSD in Baton Rouge, Louisiana, on May 22,
2012. She was assigned to work at Prescott Middle School, which at that time
shared a building with Istrouma High School. Prescott utilized 14-16 rooms
located on two floors in the rear of the building. The faculty and student
restrooms, as well as two of Prescott’s 11-12 classrooms, were on the first of
the two floors; the remainder of the classrooms, including the computer rooms,
the administrative office, and the teacher’s lounge, were on the second. The
building did not have an elevator.
       As a paraprofessional at Prescott, Claiborne worked primarily with
special education students with job duties requiring her presence throughout
the day on both floors of the school. During classroom instructional time,
Claiborne continuously walked around the room to monitor and assist the
students with their assignments. She also was tasked with escorting students
between the (first and second floor) classrooms, 1 the (first floor) bathrooms,
and the cafeteria, which required that she traverse the stairs between the two
floors several times during the day. 2 Claiborne additionally monitored the
students during their lunch, requiring that she “stand the whole time and walk
around” the cafeteria.         She also had “bus duty” in the mornings, which


       1      Two of those rooms were computer classrooms on the second floor. There was
no computer classroom on the first floor of the building. In fact, one of the upstairs computer
rooms was converted from a Physical Education classroom when extra computer space was
needed.
       2      Unfortunately, the record does not clearly identify the floor on which the
Prescott cafeteria was located.

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necessitated that she first walk upstairs to sign in, review the schedule, and
check email, and then walk downstairs to wait until the last bus arrived.”
Thereafter, she would monitor the halls between and after classes. She stood
during all of these tasks.
       On November 15, 2012, while escorting two students to the
administrative office, Claiborne slipped and fell in the hallway. A day or two
later, she saw a doctor, 3 who diagnosed her with a sprained back. After her
injury, Claiborne used a cane, and had a difficult time walking up and down
the stairs at Prescott.” 4 As a result, she began experiencing persistent pain in
her back, neck, and legs.
       On November 29, 2012, Claiborne met with Prescott Principal Rodney
Coats to request an accommodation for her injuries. Specifically, she requested
that he modify her responsibilities such that she would no longer have to climb
the stairs as frequently throughout the workday. She also asked to be excused
from lunch and bus duty.           The day after their discussion, the guidance
counselor was permitted to take Claiborne’s class to and from lunch.
Thereafter, however, the guidance counselor was too busy; thus, Claiborne
resumed her normal duties.
       Again seeking an accommodation in February or March 2013 from Coats,
Claiborne submitted a (undated) note from her physical therapist stating, “Ms.
Claiborne is able to go up to her classroom at the beginning of the day and
remain on the 2nd floor,” and asking that she be excused from “ascending and
descending stairs consistently during the school day until further notice.” 5


       3       Claiborne contends that she began receiving workers’ compensation medical
benefits in November 2012, but did not begin receiving wage benefits until approximately
June 2013, after she had exhausted her sick leave benefits.
        4      Claiborne testified that, in going up the stairs, she had to use her “walking
stick,” and the railing, and go “real slow.” One day, she almost fell.
        5      The note from Ryan Bozant, PT, DPT, states:

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According to Claiborne, the therapist also requested that she be allowed to
periodically sit in a chair for a while to rest. 6 In her deposition, Claiborne
testified that “right after he got the request . . . [Principal Coats] “did tr[y] –
he told me . . . when I leave from bus duty, then don’t come right back
upstairs[.] [Instead,] go to a classroom and help in that classroom and monitor
the special ed[ucation].” Her work, however, was not otherwise modified and
she thereafter made no other requests for accommodation.
      In early April 2013, while Claiborne was out on sick leave, she received
a telephone call from the school secretary, her sister, Brenda Claiborne, who
purportedly informed her that she would be fired if she did not report to
Prescott the next day to help administer the Louisiana Educational
Assessment Program (LEAP) test. As a result of the phone call, Claiborne
returned to work on or around April 10, 2013. She was unable to finish the
second day of testing, however, because of pain she attributed to packing and
transporting the test documents downstairs, and then standing and walking
around the room during the test. Upon hearing of her distress during lunch
time on the second day, Principal Coats instructed her to go home. According
to Claiborne, he added: “You need to retire because it’s not getting any better.
With you working and trying to move around and crying, that’s not good.”
      Claiborne remained on leave from April 11, 2013 through the end of the
semester. In mid-June 2013, Claiborne learned that she had been terminated




                     Please excuse Ms. Vera Claiborne from ascending and
             descending stairs consistently during the school day until
             further notices. Ms. Claiborne is able to go up to her classroom
             at the beginning of the day and remain on the 2nd floor. Please
             feel free to contact me at 225-275-3177 with any questions.

      6      In her deposition, Claiborne suggests that she wanted to sit for 30 minutes
without standing. No written evidence of this request, however, appears in the record.

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when she telephoned RSD’s central office to ask a question about her pay
statement. Specifically, Claiborne alleges that RSD’s HR employee, Brandy
Whitfield, told her that she had been terminated because she was “at risk.”
From this, and her additional assertion that her position was filled by a non-
disabled employee, Ashley White, Claiborne attributes her termination to her
disability, her request for accommodation, and her application for worker’s
compensation benefits.
      In December 2013, Claiborne filed an EEOC Charge of Discrimination
against RSD. When mediation proved unsuccessful, Claiborne filed a lawsuit
in state court, alleging violations of the ADA and Louisiana state law. RSD
removed the case to federal court and filed a motion for summary judgment as
to each of Claiborne’s four claims. In support of its motion, RSD argued that
Claiborne was unable to establish a prima facie case for her failure to
accommodate claim because no “reasonable accommodation existed at RSD
that would have allowed her to perform the essential functions of her job.” RSD
also argued Claiborne could not succeed on her three termination claims
because RSD had a legitimate, nondiscriminatory reason for each claim.
      The district court granted summary judgment in RSD’s favor on each of
Claiborne’s claims. This appeal followed.
                               DISCUSSION
      We review the district court’s grant of summary judgment de novo. Gray
v. Powers, 673 F.3d 352, 354 (5th Cir. 2012).         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 exists “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is proper


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                                      No. 16-30667
when “the nonmovant fails to establish facts supporting an essential element
of her prima facie claim.” Cutrera v. Bd. of Supervisors of La. State Univ., 429
F.3d 108, 110 (5th Cir. 2005). We view the evidence in the light most favorable
to the nonmovant. Gray, 673 F.3d at 354. In our analysis, we neither make
credibility determinations nor weigh the evidence. Id. Claiborne argues that
the district court failed to acknowledge RSD’s affirmative duty to attempt to
accommodate her disability, leading to a misapplication of Federal Rule of Civil
Procedure 56 to the facts of this case. She further contends that the district
court improperly weighed evidence in summarily dismissing her failure to
accommodate and termination claims.
 I.    Failure to Accommodate Claim 7
       Claiborne first argues that RSD failed to reasonably accommodate her
disability by not engaging in a meaningful conversation about how to alleviate
the pain she continued to suffer during the workday. She claims RSD had, and
did not satisfy, an affirmative duty to engage in the “interactive process” to
determine how her needs could be accommodated. See Cutrera, 429 F.3d at
112. We note, however, that the “interactive process is not an end in itself – it
is a means to the end of forging reasonable accommodations.” Silva v. City of
Hidalgo, Texas, 575 Fed. Appx. 419, 424 (2014) (quoting Loulseged v. Akzo
Nobel Inc., 178 F.3d 731, 736 (5th Cir. 1999)). Thus, it is when “an employer's
unwillingness to engage in a good faith interactive process leads to a failure to




       7       Noting that Claiborne requested an accommodation for her disability during
the number of months that she remained employed by RSD following her November 2012
injury, the Court considers the viability of her reasonable accommodation claim separately
from her three termination claims. See, e.g., Dillard v. City of Austin, Texas, 837 F.3d 557,
562 (5th Cir. 2016) (“Apart from any claim that an action was motivated by the employee's
disability, an employer's failure to reasonably accommodate a disabled employee may
constitute a distinct violation of the [ADA].”).

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reasonably accommodate an employee [that] the employer violates the ADA.”
Id. (emphasis added).”
      The ADA requires employers to make “reasonable accommodations to
the known physical or mental limitations of an otherwise qualified individual
with a disability who is an applicant or employee, unless such covered entity
can demonstrate that the accommodation would impose an undue hardship on
the operation of the business of such covered entity.” 42 U.S.C. § 12112(b)(5).
Thus, to recover on a failure to accommodate claim, a plaintiff must prove that:
“(1) [she] 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., Dept. of Justice, Office of the Attorney General, 730
F.3d 450, 452 (5th Cir. 2013) (quotation marks omitted).
      To satisfy her summary judgment burden as to the first element,
Claiborne must have put forth admissible evidence sufficient to create a
material dispute as to whether she is a “qualified individual with a disability.”
Feist, 730 F.3d at 452. The ADA defines “disability” as “a physical or mental
impairment that substantially limits one or more major life activities . . . .” 42
U.S.C. § 12102(1)(A). “Major life activities” include both walking and standing.
Id. Claiborne alleged that she suffers a disability in the form of severe neck,
back, and leg pain resulting from her November 2012 fall at work. For appeal
purposes, we assume Claiborne had a “disability” as contemplated by the ADA.
Further, given Principal Coats’ awareness of Claiborne’s injury and difficulties
at work, we assume that the “knowledge” requirement of the second element
also is met.
       The next question is whether Claiborne was “qualified” under the ADA.
Proving that status required that she put forth admissible evidence


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establishing “(1) that [she] could perform the essential functions of the job in
spite of [her] disability or (2) that a reasonable accommodation of [her]
disability would have enabled [her] to perform the essential functions of the
job.” Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1093 (5th Cir. 1996)
(emphasis added).
      By her own admission, because the building had no elevator, Claiborne
could not perform her job responsibilities without “walk[ing] up and down the
stairs [between the school’s two floors] repeatedly during the work day.”
Monitoring and assisting the students to whom she was assigned also required
that she be able to stand and walk around for extended periods of time. It is
clear from the record, however, that Claiborne could not make those repeated
trips up and down the stairs, or stand and walk for extended periods of time,
after her fall, because of her chronic pain. Thus, it is evident that Claiborne
could not perform the essential functions of her job in spite of her disability,
i.e., without any accommodation from her employer.
      Accordingly, for purposes of the first element of Claiborne’s failure to
accommodate      claim,   the    query       becomes   whether    a    “reasonable
accommodation” existed that would have allowed her to perform the essential
functions of her job, such that she was “qualified”; and if so, for purposes of the
third element, whether or not RSD made that accommodation. The district
court found Claiborne’s failure to accommodate claim lacking because no
reasonable accommodation was shown to be available. Specifically, the Court
concluded: “RSD would have had to relieve [Claiborne] of her essential job
functions and assign her job functions to someone else” to accommodate her
requests.
      Providing a “reasonable accommodation” under the ADA does not
require the employer to “relieve the employee of any essential functions of the


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job, modify the actual duties, or reassign existing employees or hire new
employees to perform those duties.” Robertson v. Neuromedical Ctr., 161 F.3d
292, 295 (5th Cir. 1998); see also Turco, 101 F.3d at 1094 (accommodation that
would result in other employees having to work harder or longer or is not
required). Thus, a disabled employee cannot perform her job with reasonable
accommodation if the only reasonable accommodation is for the employee not
to perform the essential functions of her job. See Barber v. Nabors Drilling
U.S.A., Inc., 130 F.3d 702, 709 (5th Cir. 1997).
      In this instance, Claiborne contends that RSD could have reasonably
accommodated her disability by (1) reducing the number of times she was
required to use the stairs each workday, (2) allowing her to exchange work
assignments with a colleague, (3) limiting her classroom time to the school’s
first floor classrooms, (4) providing her with a wheelchair or desk chair with
wheels, and/or (5) allowing her to sit, rather than stand, for certain periods of
time. For obvious reasons, permitting Claiborne to refrain from traversing the
stairs during the day would hinder her ability to escort students to and from
the (first and second floor) classrooms and the (first floor) restrooms as needed.
And allowing her to swap assignments with her co-worker, Roger Cooper
(because he worked with only one special education student, unlike Claiborne,
who worked with several), would amount to a reassignment of her
responsibilities to another employee. As stated in Robertson, such measures
are not required by the ADA.        Besides, Claiborne makes no evidentiary
showing that she could fulfill Cooper’s job duties, and vice versa; that
undertaking the tasks assigned to him would necessarily adequately
accommodate her disability; and that any federal funding requirements
applicable to Cooper’s assigned student would be satisfied if she took his place.




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       A dearth of evidence is likewise fatal to Claiborne’s suggestion that her
classroom duties be limited to the two classrooms located on the school’s first
floor. Indeed, Claiborne points to no evidence that such a change was even
feasible. 8 The same is true relative to Claiborne’s request that she be provided
a chair with wheels to use in performing her monitoring duties, or otherwise
allowed to periodically sit during classroom time, bus duty, lunch duty, and/or
hallway duty.        Specifically, Claiborne has failed to make the necessary
evidentiary showing relative to whether such measures would satisfactorily
accommodate her disability, while still allowing her to properly monitor and
assist the students, as needed, to perform the essential functions of her job.
       Rather, as noted by the district court, Claiborne’s assertions regarding
reasonable accommodations are based largely on little more than speculation.
Such conclusory and speculative assertions fall far short of the mark. For these
reasons, we affirm the district court’s conclusion that Claiborne failed to satisfy
her summary judgment evidentiary burden relative to her reasonable
accommodation claim. 9 Accordingly, on the facts presented here, we likewise
find no reversible error relative to the lower court’s rejection of Claiborne’s
claim that RSD further violated the ADA and Louisiana law by not engaging
in a more involved interactive process.


       8       For instance, Claiborne testified that at least some of her classroom time was
spent in the two second floor computer rooms. No showing is made, however, as to whether
Claiborne’s services were needed only in connection with instructional time requiring the use
of the computers and/or whether the downstairs classrooms were properly outfitted for use
with multiple computers by the students. Further, Coats testified that the school did not
have access to any vacant rooms.
        9      Indeed, it is not apparent from the record or the parties’ briefs that Claiborne’s
counsel posited a single deposition question to Principal Coats, or any pertinent RSD
personnel, relative to Claiborne’s accommodation requests, RSD’s responses thereto, and
what additional measures, if any, were or could have been taken to attempt to reasonably
accommodate Claiborne’s disability such that her employment with RSD could continue. This
is particularly surprising considering averments by RSD’s central office personnel that they
were unaware of any accommodation request by Claiborne.

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II.     Discriminatory Discharge Claim
        Claiborne next claims that RSD violated the ADA and Louisiana law by
terminating her employment because of her disability. When, as here, a
plaintiff offers only circumstantial evidence to prove discrimination under the
ADA, we apply the familiar McDonnell Douglas burden-shifting framework.
See, e.g., E.E.O.C. v. Chevron Phillips Chem. Co., LP, 570 F.3d 606, 615 (5th
Cir. 2009). Under this framework, an aggrieved employee must first establish
a prima facie case for discrimination with the elements being as follows:
        That (a) she is disabled, has a record of having a disability, or is
        regarded as disabled, (b) she is qualified for her job, (c) she was
        subjected to an adverse employment action on account of her
        disability or the perception of her disability, and (d) she was
        replaced or treated less favorably than non-disabled employees.

Id. If a plaintiff establishes each element of her prima facie case, the burden
then shifts to the employer to “articulate a legitimate, nondiscriminatory
reason for the adverse employment action.” Id. The burden-shifting framework
then falls away, and any evidence tending to show the articulated reason was
pretext for discrimination may be considered. Id.
        The district court assumed that Claiborne had established a prima facie
case of discriminatory discharge before analyzing RSD’s reason for her
termination. Nevertheless, because we have found that Claiborne failed to
meet her summary judgment burden regarding the availability of a reasonable
accommodation, we likewise conclude, as an initial matter, that the “qualified”
element (b) of her prima facie discrimination case is not met.
        We additionally find that Claiborne similarly failed to establish element
(d) of her prima facie case, i.e., that she was replaced by a non-disabled person.
As set forth above, Claiborne contends that Ashley White, a non-disabled


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employee, was hired to replace her after her termination. RSD disputes this
allegation, maintaining that Claiborne’s “position was eliminated and never
filled again.” Significantly, White’s RSD Employee Notification Form lists her
position as a “clerk,” not a “paraprofessional” as Claiborne’s does, and
Claiborne has put forth no competent evidence to suggest or demonstrate the
contrary actually is true with respect to White. Although Claiborne points to
written declarations from her sister/school secretary, Brenda Claiborne, and
former school office manager, Tamatha Brown, averring that the alleged
replacement occurred, the record is void of evidence that either declarant was
competent to establish, for instance, that White even arguably replaced
Claiborne, as a practical matter, by performing the same job duties. 10 Nor has
Claiborne presented any admissible evidence that White was ever referred to,
or treated as, a paraprofessional while working at Prescott during the year it
remained open after Claiborne’s termination. Hence, on this record, Claiborne
has failed to articulate a prima facie case that her termination was the result
of ADA discrimination.
      Furthermore, even if we assume, as did the district court, that Claiborne
had established a prima facie case, RSD has articulated a legitimate,
nondiscriminatory reason for Claiborne’s termination. Specifically, according
to RSD, Claiborne was laid off as a part of a comprehensive reduction in force
(RIF), she was never replaced, and, because of budgetary restraints, her




      10      With respect to White, both declarations offer only insufficiently conclusory
statements devoid of any factual support. Brenda Claiborne states: “After RSD terminated
Vera Claiborne’s employment, RSD hired two or more individuals as paraprofessionals
including Ms. Ashley White, who is RSD’s Executive Director, Lakeisha Robichaux’s sister.”
Tamatha Brown states: “Vera was replaced by Ashley White, the sister of RSD’s Baton Rouge
Branch Manager, Lakeisha Robichaux.”

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position was eliminated. 11 We have previously recognized that a RIF “is itself
a legitimate, nondiscriminatory reason for discharge.” E.E.O.C. v. Tex.
Instruments Inc., 100 F.3d 1173, 1181 (5th Cir. 1996).
       In this instance, RSD Deputy Chief of Staff Laura Hawkins testified that
Prescott faced a “rapidly plummeting enrollment.” As a result, fewer staff
members were necessary to accommodate the student body. Thus, a RIF was
necessary to balance the budget. The RIF, moreover, was not just at Prescott.
Rather, in 2013, RSD had “a very tight budget and all the schools were going
to have to operate at bare bones level.” As such, cuts were made district-wide,
impacting employees at all ten of the schools that RSD directly ran, including
in New Orleans, and at the RSD central office.
       As explained by Hawkins, with a RIF, the basics are considered – what
funds exist, the amount of school enrollment, and the budget. Hence, an
evaluation is made to determine which staff could be eliminated in order to
bring about a balanced budget. Maintaining essential employees, including
teachers, is an obvious priority. Thus, school “support staff usually is the first
to be laid off because they” unlike teachers “are not considered essential to the
school staying open.”
        Consistent with these principles, the school secretary at Prescott,
Claiborne’s sister, Brenda Claiborne, was laid off at the end of the semester
(but returned to duty for a short time during the summer because help was
needed). On the other hand, the Prescott teachers, as essential school
personnel, were not subject            to the 2013 RIF. “Special              education”
paraprofessionals at Prescott similarly were not laid off because federal IDEA
funding guidelines required their placements with certain individual special


      11      Indeed, despite RSD’s cost-saving efforts with the RIF, Prescott closed after
the 2013-14 school year. At that point, all remaining Prescott employees were laid off.

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                                      No. 16-30667
education students. 12 “Regular” paraprofessionals, to the contrary, could “be
cut at any time because [those] positions [were] not necessary or essential” to
the school’s operations. 13 Thus, according to RSD Deputy Chief of Staff
Hawkins, “all regular paraprofessional positions” at Prescott, including
Claiborne’s, were RIF’d.” 14
       Asserting that RSD’s proclaimed reason for termination, the RIF, was a
pretext for discriminatory discharge, Claiborne repeats her contention that
RSD replaced her with Ashley White, a non-disabled person. For the same
reasons discussed above relative to Claiborne’s prima facie case, this argument
likewise fails to establish pretext. Claiborne additionally maintains that the
RIF is pretextual based on her contention that she was a special education
paraprofessional at Prescott, not a regular paraprofessional, and thus should
not have been subject to the RIF.             Given the paucity of record evidence
supportive of this contention, however, we, like the district court, disagree.
       Significantly, Claiborne’s RSD Employee Notification Form identifies
her as a “paraprofessional,” and nothing else. And while it appears undisputed
that Claiborne certainly worked with special education students, the Prescott
paraprofessionals classified as “special education paraprofessionals” (for
purposes of the RIF) were only those who were required by federal funding
guidelines to be placed with a single student as a part of his or her



       12      For instance, RSD HR employee Brandy Whitfield: “Ms. Collette Perkins was
a special education paraprofessional who worked at Prescott Middle in 2013; she was not laid
off during the 2013 RIF because her position was not eliminated.”
        13     Regarding this assessment, RSD Executive Director Lakeisha Robichaux
agreed with Hawkins: “The regular paraprofessional positions were not necessary for the
school to function. Prescott [] could operate without any regular paraprofessionals working
there.”
        14     Robichaux similarly testified: “During the RIF at Prescott Middle in 2013, all
regularly paraprofessional positions were eliminated. Ms. Claiborne was laid off because she
was a regular paraprofessional.”

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                                     No. 16-30667
individualized education plan. Thus, because of these restrictions, special
education paraprofessionals, in the context of a RIF, were considered essential
employees not subject to termination.
      In contrast, regular paraprofessionals, like Claiborne, were not subject
to a specialized, individual student assignment. Instead, they could be, as was
Claiborne, responsible in varying capacities for multiple students.                 Such
regular paraprofessionals, including Claiborne, undoubtedly were valuable
employees, but nonetheless were not considered essential to the school’s
functioning or required for federal funding; thus, all were terminated as part
of the RIF. Notably, Claiborne has put forth no competent evidence to the
contrary. 15 Hence, this pretext argument also fails.
      Claiborne’s final pretext argument relative to her discriminatory
discharge claim is that Principal Coats, Tamatha Brown (Prescott’s former
office manager), and Brenda Claiborne (Prescott’s former secretary and
Claiborne’s sister) allegedly lacked advance notice of the reduction in force
prior to Claiborne’s termination. Specifically, she argues that such ignorance
of the RIF creates a genuine dispute of fact as to whether a RIF, as argued by
RSD, actually existed. Considered in the context of the instant matter, we
disagree that such facts provide adequate grounds for a reasonable trier-of-fact
to conclude that RSD was attempting to hide a differing, true motive behind
Claiborne’s termination.
      As an initial matter, the RIF in question was not focused solely on, or
ordered by, Prescott personnel.         Rather, it was a district-wide reduction,


      15      Although declarations provided by Tamatha Brown, the former Prescott office
manager, and Roger Cooper, Claiborne’s former Prescott co-worker, refer to Claiborne as a
“Special Education Paraprofessional,” neither establishes that the declarant had the
necessary personal knowledge of Claiborne’s specific job duties and/or the particular
requirements necessary for classification as a “Special Education Paraprofessional.” Thus,
neither declaration provides competent evidence on that point.

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                                 No. 16-30667
impacting personnel at all ten of the schools RSD directly ran, and at the
central office, that was determined to be necessary, planned, and implemented
by the RSD Deputy Chief of Staff Hawkins and other executive level RSD staff,
not Principal Coats or any other Prescott personnel. Even so, Coats confirmed
RSD’s assertion that, as of the end of the 2012-2013 school year, enrollment for
the upcoming school year (2013-2014) had decreased. Indeed, the declining
enrollment was one of the reasons Coats decided to resign from RSD as of June
30, 2013, with the end of the May being the last time he was physically present
at Prescott. Moreover, he testified that he had “not much, if any” contact with
individuals at Prescott, or the RSD, after he submitted his resignation in May
2013. Accordingly, it is not apparent from this record that Coats likely would
have known in advance that Claiborne or any other Prescott personnel would
be impacted in June 2013 by a RSD system-wide RIF.
      Finally, relative to a purported lack of advance knowledge of the RIF by
the Prescott school secretary and office manager, it is not apparent to the Court
that such non-leadership personnel necessarily would have had advance notice
of a June 2013 RIF. Nor has Claiborne submitted any evidence on this point,
or that RSD’s budgetary concerns were unfounded or otherwise illegitimate;
rather, her position is again one of unhelpful and conclusory speculation. In
any event, Claiborne herself testified that Brenda Claiborne, the school
secretary, also was laid off in June 2013 as a result of the RIF; therefore,
further demonstrating the void of factual support for Claiborne’s position on
this issue. On these facts, then, the district court correctly concluded that no
reasonable basis exists for concluding that the RIF proffered by RSD did not
exist and instead was mere pretext for discrimination.




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                                  No. 16-30667
III.     Retaliatory Discharge Claim: Reasonable Accommodation and Leave
         With her third claim, Claiborne additionally argues that she was
unlawfully terminated in retaliation for seeking accommodation under the
ADA for her disability, and for taking leave from work because of that
disability. Retaliation claims asserted pursuant to the ADA also operate under
the McDonnell Douglas framework. See Seaman v. CSPH, Inc., 179 F.3d 297,
301 (5th Cir. 1999). To establish a prima facie case of retaliation, a plaintiff
must establish “(1) engagement in an activity protected by the ADA, (2) an
adverse employment action, and (3) a causal connection between the protected
act and the adverse action.” Id.     In retaliation claims, the plaintiff must
ultimately show that the protected activity is the “but for” cause of the adverse
employment action. Id.
         The district court again assumed, for purposes of its opinion, that
Claiborne could establish a prima facie case of retaliation and focused instead
on whether Claiborne could show RSD’s proffered reason for termination was
pretext. We agree with the district court’s determination that even if Claiborne
established a prima facie case of retaliatory discharge, she nevertheless still
failed to rebut RSD’s legitimate, nondiscriminatory reason for her termination.
In arguing RSD’s reason is mere pretext, Claiborne again disputes, for
essentially the same reasons previously argued, that a RIF, as described by the
RSD, actually occurred. We likewise find Claiborne’s position on this issue
unsupported and, thus, reject the notion that it is sufficient to preclude
summary judgment in RSD’s favor.
         In support of her claim, Claiborne also relies on her contention that
RSD’s HR employee, Brandy Whitfield, told her on the telephone that she was
terminated because she was “at risk.” Comments in the workplace, however,
do not constitute evidence of discrimination unless they are:


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                                    No. 16-30667
        (1) related to the protected class of persons of which the plaintiff is
        a member; (2) proximate in time to the complained-of adverse
        employment decision; (3) made by an individual with authority
        over the employment decision at issue; and (4) related to the
        employment decision at issue.

Rubinstein v. Admins. of Tulane Educ. Fund., 218 F.3d 392, 400–01 (5th Cir.
2000) (quotation marks and brackets omitted). When one of these criteria are
not satisfied, the comments are deemed to be “stray remarks” not probative of
retaliation.
        Here, Claiborne has offered no evidence that Whitfield had any authority
to determine who would be discharged as a result of the RIF.               Although
Whitfield was employed by RSD as a “HR Generalist,” she, RSD Chief of Staff
Hawkins, and Executive Director Robichaux maintain that the RIF decisions
were made district-wide by RSD personnel at administrative levels higher
than Whitfield. Significantly, no evidence to the contrary has been cited by
Claiborne. Thus, even if Whitfield did refer to Claiborne as “at risk,” which is
disputed, 16 we are left to conclude that the comment constitutes little more
than a stray remark and, as such, is not probative of pretext. Accordingly, we
find that the district court did not err in granting RSD’s motion for summary
judgment as to her ADA retaliation claim.
IV.     Retaliatory Discharge Claim: Louisiana Workers’ Compensation Benefits
        Claiborne’s final claim is that RSD terminated her in retaliation for filing
a workers’ compensation claim, “which is clearly unlawful under Louisiana
law.” See La. Rev. Stat. § 23:1361(B) (“No person shall discharge an employee
from employment because of said employee having asserted a claim for
[workers’ compensation].” To prevail on a retaliation claim, the plaintiff must


        16   Whitfield contends that she told Claiborne that she had been terminated
because she was “RIF’d,” not because she was “at risk.”

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                                  No. 16-30667
establish that filing a workers’ compensation claim was “more probably than
not” the reason for her termination. Chivleatto v. Sportsman’s Cove, Inc., 05-
136, pp. 5-6 (La. Ct. App. 6/28/05); 907 So. 2d 815, 819. The employer may then
offer a legitimate reason for the discharge, which the plaintiff may rebut with
evidence showing the stated reason is a façade for retaliatory termination.
Hansford v. St. Francis Med. Ctr., Inc., 43, 964, p.7 (La. Ct. App. 1/14/09); 999
So. 2d 1238, 1242.
      Our discussion of RSD’s RIF applies here, as well, because it constitutes
a legitimate reason for Claiborne’s discharge from employment. In explaining
her decisions relative to the positions to be cut from Prescott’s staff because of
budgetary constraints, RSD Deputy Chief of Staff Hawkins avers that she “did
not know anything about Ms. Claiborne being on worker’s compensation or
anything about an accommodations request.” On the showing made, we agree
with the district court’s determination that Claiborne failed to put forth
sufficient evidence that it was her claim for workers’ compensation benefits
that led to her termination, rather than RSD’s systematic and objective
assessment of the measures necessary to accommodate the budgetary needs of
its schools in the face of declining student enrollment. Indeed, Claiborne offers
little more than the same unsupported contentions regarding her classification
(and resulting termination) as a “regular paraprofessional,” relative to the RIF,
rather than a “special education paraprofessional. Accordingly, we find the
district court likewise correctly granted summary judgment as to this claim.
      For the foregoing reasons, we AFFIRM the judgment of the district court.




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