     Case: 13-50500      Document: 00512535480         Page: 1    Date Filed: 02/18/2014




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

                                                                                  FILED
                                     13-50500                              February 18, 2014
                                  Summary Calendar
                                                                             Lyle W. Cayce
                                                                                  Clerk
VIRGINIA C. MUNOZ,

                                                 Plaintiff – Appellant
v.

SETON HEALTHCARE, INCORPORATED, doing business as Seton Health
Network; SETON FAMILY OF HOSPITALS; SETON NORTHWEST
HOSPITAL; SETON SOUTHWEST HOSPITAL; ASCENSION HEALTH,

                                                 Defendants – Appellees




                   Appeal from the United States District Court
                        for the Western District of Texas
                          USDC No. 1:11-CV-00151-LY


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Virginia C. Munoz brought claims of discrimination based upon her
disability, age, and national origin, and retaliation against Seton Healthcare
Incorporated and affiliated entities.         The district court granted summary
judgment to the defendants as to all claims. We AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-50500
              FACTUAL AND PROCEDURAL BACKGROUND
      Virginia Munoz is sixty-one years old and suffers from rheumatoid
arthritis and autoimmune disease, which render her disabled. In 2004, Seton
hired her to be a “Patient Access Representative” or “PAR” at the Seton
Northwest Hospital in Austin, Texas. PAR responsibilities and duties vary
depending on where the PAR is stationed within the hospital.    Between 2004
and her termination in October, 2010, Munoz worked as a PAR at two Seton
hospitals – Northwest and Southwest – and in several different departments.
Munoz spent most of her time at Seton’s hospitals working in the emergency
department, but also worked for short periods in other departments.
      Munoz received the diagnoses of her rheumatoid arthritis and
autoimmune disease in 2007. Pursuant to the Family Medical Leave Act
(“FMLA”), she received permission to miss work occasionally in order to receive
scheduled injections of immunosuppressant drugs, but she did not formally
request or present any documentation of necessary accommodations.          She
regularly applied for openings in other departments due to her concerns about
interacting with people who might have infectious diseases.
      Beginning in 2008, Munoz was transferred to the outpatient admissions
department, though she still occasionally worked shifts in the emergency
department. Sometimes that was as often as three or four times per week. In
August 2009, Seton transferred Munoz to work exclusively in the emergency
department.    This occurred after a negative performance review and
observations regarding her capabilities to manage the more complex tasks
required of PARs in the outpatient department.           Munoz subsequently
requested that she be moved back to outpatient, claiming that the more
physically-intensive PAR duties in the emergency department aggravated her
rheumatoid arthritis.   Her supervisors refused for the same reasons they
originally transferred her. Around this time, she filed a charge with EEOC
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                                 No. 13-50500
charge   against   Seton,   claiming   the   transfer   was   undertaken     with
discriminatory motives.
      In February 2010, with Seton’s encouragement, she filed for and received
ten weeks of leave under the FMLA. Shortly thereafter, her doctor completed
a form certifying that she was totally disabled and unable to work. When she
failed to return to work following that period of leave, Seton encouraged her to
apply for a six-month leave of absence pursuant to company policy. She never
filled out the paperwork and never returned.            In October 2010, Seton
terminated her employment.
      Munoz originally filed this action in Texas state court, alleging claims
under the Americans with Disabilities Act (“ADA”), FMLA, Title VII of the
Civil Rights Act of 1964, the Age Discrimination in Employment Act (“ADEA”),
the Texas Commission on Human Rights Act (“TCHRA”), and the state
workers’ compensation law. Seton removed the case to federal court. There,
the workers’ compensation claim was severed.        Munoz filed two amended
complaints with leave and then subsequently terminated her attorney.
Proceeding pro se, as she does here, she attempted to file another amended
complaint alleging that a vaccination Seton provided to her caused allergic
reactions. A magistrate judge considered cross-motions for summary judgment
and a motion to strike the third amended complaint.             The report and
recommendation suggested granting Seton’s summary judgment motion,
denying that of Munoz, and striking the third amended complaint. Munoz filed
a pleading, construed by the district judge as an objection, re-alleging factual
material from the third amended complaint and claiming the magistrate
judge’s report was erroneous. The district court overruled her objections and
adopted the report and recommendations. Munoz filed a timely appeal.




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                                      No. 13-50500
                                     DISCUSSION
       Summary judgment is appropriate when there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law.
FED. R. CIV. P. 56(a). A genuine dispute of material fact exists only if “a
reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
a. Preliminary Matters
       Munoz filed a third amended complaint alleging negligence and fraud in
connection with a vaccination she received from Seton during her employment,
retaliation with regard to her workers’ compensation claim, and spoliation of
evidence. 1 Upon Seton’s motion to strike, the magistrate judge noted that
Munoz failed to seek leave and filed her new complaint eight months beyond
the deadline listed in the scheduling order for amended pleadings. On this
basis he recommended the complaint be stricken. The district judge did so.
Resolution of a motion to strike is reviewed for abuse of discretion. Cambridge
Toxicology Grp., Inc. v. Exnicios, 495 F.3d 169, 178 (5th Cir. 2007). Because
Munoz filed her third amended complaint without consent or leave, we
conclude the district court did not abuse its discretion in striking it. See id.;
see also FED. R. CIV. P. 15(a)(2).
       Munoz included Ascension Health, Seton’s parent corporation, as a
defendant in each of her complaints. The district court concluded Ascension
was never Munoz’s employer and thus could not be responsible for any adverse
employment action she suffered. Neither Munoz’s pleadings nor briefing make




       1 Her amended complaint was titled “Plaintiff’s Second Amended Petition,” but it was
actually her third complaint. Furthermore, it alleged only her new claims and failed to
restate claims from her previous complaints. Seton argued the failure to restate those claims
amounted to abandonment. The magistrate judge concluded the claims were not abandoned,
and we do not disturb that finding here.
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clear the basis of Ascension’s alleged liability. 2 In determining that Ascension
was not Munoz’s employer, the district court apparently relied upon the fact
that Munoz presented no evidence that Ascension had anything to do with her
transfer or termination. See Chaiffetz v. Robertson Research Holding, Ltd., 798
F.2d 731, 735 (5th Cir. 1986) (an employer must be the “entity [making] the
final decisions regarding employment matters related to the person claiming
discrimination”). We agree. To the extent Munoz argues Ascension and Seton
are integrated and thus both liable to her as employers under the relevant
statutes, we conclude this argument fails.          Munoz presents no evidence
indicating that Ascension made any of the decisions resulting in the allegedly
adverse actions of which Munoz complains. Dismissal was proper.


b. ADA Claims
      The ADA prohibits discrimination against qualified individuals with
disabilities and requires employers to make reasonable accommodations for
otherwise qualified disabled employees. 42 U.S.C. § 12112(a); 12112(b)(5)(A).
To determine whether Munoz’s claims survive summary judgment, we apply
the McDonnell Douglas framework. See McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Munoz’s initial burden is to submit a prima facie case of
discrimination based upon her disability by showing (1) she is disabled, (2)
qualified for the job, (3) faced an adverse employment action because of her
disability, and (4) was replaced by or treated less favorably than non-disabled
employees. EEOC v. Chevron Phillips Chemical Co., LP, 570 F.3d 606, 615
(5th Cir. 2009).



      2  For example, Munoz argues Ascension should be liable because Texas state
insurance regulations require parent corporations to guarantee workers’ compensation
programs and Ascension administers the Seton workers’ compensation plan. As discussed
above, her workers’ compensation claims are not before us in this appeal.
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                                 No. 13-50500
      Munoz alleges Seton discriminated against her because of her disability
through three allegedly adverse employment actions.               The first was
transferring her to the emergency department in August 2009; the second was
refusing to transfer her back; the third was when it ultimately terminated her
in October 2010. We discuss the transfer and denial first, followed by her
ultimate termination.
      At the time of her August 2009 transfer, Munoz was not under any
restrictions due to her rheumatoid arthritis. In October 2009, Seton’s internal
occupational health department restricted her activity for four weeks, but
Munoz provided no documentation of any restrictions on her abilities to work
in the emergency department. In any case, “a purely lateral transfer is not an
adverse employment action.” Burger v. Cent. Apartment Mgmt., Inc., 168 F.3d
875, 879 (5th Cir. 1999). It is undisputed here that PARs, regardless of where
they were stationed within the hospital, maintained the same pay, benefits,
and title. Munoz’s mere subjective preference of the outpatient department to
the emergency department does not make her transfer or Seton’s refusal to
transfer her back adverse. See Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d
757, 771 n.8 (5th Cir. 2001). Munoz failed to make out a prima facie case of
discrimination on these two of Seton’s actions.
      By the time of her termination in October 2010, Munoz was completely
disabled.   This is shown by a disability form completed by her treating
physician and from her own testimony. As previously discussed, Munoz’s
prima facie case required her to show she was qualified for the position from
which she was terminated. See Chevron Phillips Chem. Co., 570 F.3d at 615.
It is undisputed that Munoz became completely disabled and unable to work
in February 2010. She was not terminated until more than eight months later,
when she did not apply for a leave of absence and never returned to work


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following her ten weeks of authorized FMLA leave. Munoz did not present a
prima facie case of discrimination with respect to her termination.
      Munoz alleges Seton’s refusal to transfer her back to the outpatient
department in 2009 violated Seton’s responsibility to make reasonable
accommodations for her disability. See 42 U.S.C. § 12112(b)(5)(A). The ADA
entitles disabled persons to reasonable accommodations but not to any
particular job. Jenkins v. Cleco Power, LLC, 487 F.3d 309, 316 (5th Cir. 2007).
An employer is required to engage in an “interactive process” and a
“meaningful” dialogue for arranging the accommodation. Chevron Phillips
Chem. Co., 570 F.3d at 621. It is undisputed that, by 2009, Seton was aware
of Munoz’s rheumatoid arthritis and her desire to avoid the emergency
department and its attendant risk of exposure to infectious diseases. Munoz
also claimed that the physical demands of the emergency department were too
great, but obtained documentation of this only in October 2009 after she had
been transferred and denied the opportunity to move back to the outpatient
department. Nonetheless, Seton provided for her a surgical face mask to
protect her from airborne diseases and permitted her to work eight-hour shifts
instead of the typical twelve-hour shifts. These accommodations, while not
Munoz’s preferred accommodations, were enough to satisfy Seton’s duties
under the ADA. See Jenkins, 487 F.3d at 316.


c. Title VII, ADEA, TCHRA, and FMLA
   i. Primary Claims
      Because Munoz’s claims under Title VII, the ADEA, and the TCHRA
involve the same conduct alleged above, we discuss them together. Title VII
prohibits employment discrimination based on, among other traits, race and
national origin.   42 U.S.C. § 2000e-2.    The ADEA prohibits employment
discrimination on the basis of age. 29 U.S.C. § 623(a) The TCHRA prohibits
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employment discrimination on all of these bases. TEX. LABOR CODE § 21.051.
Finally, the FMLA prohibits retaliation by an employer for an employee’s
enjoyment of its benefits. 29 U.S.C. § 2615(a)(1).
      To analyze Munoz’s several claims of discrimination based on
circumstantial evidence, we return to the McDonnell Douglas framework. We
begin with the claims under Title VII and the ADEA. Munoz may establish a
prima facie case for discrimination based upon her race, national origin, and
her age, by showing: (1) she is a member of a protected class, (2) was qualified
for the position, (3) was subjected to an adverse employment action, and (4)
was treated less favorably than similarly-situated employees who are not
members of her protected class. Wesley v. Gen. Drivers, Warehousemen &
Helpers Local 745, 660 F.3d 211, 213 (5th Cir. 2011). For her ADEA claim,
Munoz also must show she was “replaced by someone younger” and was
“otherwise discharged because of [her] age” as part of the fourth factor. Rachid
v. Jack In The Box, Inc., 376 F.3d 305, 309 (5th Cir. 2004). Munoz is Hispanic
and was over forty years of age when the alleged adverse employment actions
took place. She alleges discrimination in her transfer and termination. She
also alleges Seton discriminated against her by not providing her training for
certification in completing birth certificates.
      Munoz claims her transfer out of the outpatient department and Seton’s
refusal to transfer her back were motivated by her race, national origin, and
age. As discussed above, “purely lateral” transfers do not represent adverse
employment actions. See Burger, 168 F.3d at 879. We concluded above that
the transfer from the outpatient department and the emergency department is
“purely lateral” and therefore not adverse.        Id.      Consequently, Munoz’s
allegations regarding her transfer fall short of a prima facie case of
discrimination on the basis of race, national origin, or age under Title VII and
the ADEA.
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        Munoz further claims her termination was motivated by her race,
national origin, or age. We already concluded she was not qualified for the
position she sought or from which she was terminated. Her own testimony and
a form completed by her treating physician show she was totally disabled in
February 2010, months before her termination. By October 2010, Munoz was
not qualified for the position from which she was terminated. Therefore, she
did not present a prima facie case that her termination was motivated by her
race, national origin, or age. See Wesley, 660 F.3d at 213; Rachid, 376 F.3d at
309.
        Munoz further alleges Seton denied her training for completing birth
certificates and did so because of her race, national origin, or age. We have
held the “denial of [training peripheral to a plaintiff’s main duties] is not an
adverse employment action covered by Title VII” when that denial does not
“tend to result in a change of employment status, benefits, or responsibilities.”
Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 407 (1999) (quotation
marks omitted). PAR duties in the emergency department, where Munoz
worked, did not include completing birth certificates. Seton’s denial of birth
certificate training, then, does not “result in a change of employment status,
benefits, or responsibilities” for Munoz. Id. We conclude this denial of training
was not an adverse action. Therefore, Munoz fails to make out a prima facie
case of discrimination based upon her race, national origin, and age with
regard to Seton’s denying her birth certificate training.
        We note here, as did the district court, that the foregoing analysis is fully
applicable to Munoz’s state law claims under the TCHRA and she may not
recover under its provisions for substantially the same reasons she may not
recover under Title VII or the ADEA. See Wal-Mart Stores, Inc. v. Canchola,
121 S.W.3d 735, 739 (Tex. 2003) (“The Legislature intended to correlate state


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law with federal law in employment discrimination cases when it enacted the
TCHRA.”).


   ii. Retaliation
      The ADA, Title VII, the ADEA, the TCHRA, and the FMLA all contain
provisions prohibiting retaliation for asserting the rights or enjoying the
benefits under those statutes. See Jenkins, 487 F.3d at 317 (ADA); Turner v.
Baylor Richardson Medical Center, 476 F.3d 337, 348 (5th Cir. 2007) (Title
VII); Holtzclaw v. DSC Commc’ns Corp., 255 F.3d 254, 259 (5th Cir. 2001)
(ADEA); Mauder v. Metro. Transit Auth. of Harris Cnty., Tx., 446 F.3d 574, 583
(5th Cir. 2006) (FMLA).
      We again utilize the McDonnell Douglas framework. In the retaliation
context, a prima facie case requires a showing that (1) Munoz engaged in a
protected activity pursuant to one of the statutes, (2) an adverse employment
action occurred, and (3) there exists a causal link connecting the protected
activity to the adverse employment action. See, e.g., Holtzclaw, 255 F.3d at
259. Munoz alleges her termination was in retaliation for filing an EEOC
charge of discrimination against Seton in August 2009. The district court
concluded Munoz had engaged in a protected activity and that the termination
was an adverse employment activity. We agree and conclude the first two
elements of the analysis are satisfied. Finally, Munoz must show a causal link
by presenting some evidence tending to show a relationship between the filing
of her EEOC charge and her termination. The only evidence she presents,
beyond her own subjective belief that Seton had forced her out of the outpatient
department with discriminatory motives, was the timing of her termination in
relation to the EEOC charge. Where timing is the only evidence of retaliation,
the “temporal proximity must be very close.” Clark Cnty. Sch. Dist. v. Breeden,
532 U.S. 268, 273 (2001) (quotation marks omitted).             Here, Munoz’s
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                                 No. 13-50500
termination occurred more than a year after the EEOC charge was filed. The
period from August 2009 to October 2010 cannot be said to be “very close.” We
conclude Munoz’s claims of retaliation under all of these statutes must fail.
      AFFIRMED.




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