     Case: 14-60896   Document: 00513379409        Page: 1   Date Filed: 02/12/2016




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT


                                    No. 14-60896
                                                                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
PATRICIA ANDERSON,                                                February 12, 2016
                                                                    Lyle W. Cayce
             Plaintiff – Appellant                                       Clerk

v.


HARRISON COUNTY, MISSISSIPPI,

             Defendant – Appellee

__________________________________________________________________________
Consolidated with 15-60204


PATRICIA ANDERSON,

             Plaintiff – Appellee
v.

HARRISON COUNTY, MISSISSIPPI,

             Defendant – Appellant




                 Appeals from the United States District Court
                    for the Southern District of Mississippi
                            USDC No. 1:13-CV-302
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                               No. 14-60896 cons/w No. 15-60204
Before DENNIS and COSTA, Circuit Judges, and ENGELHARDT, District
Judge.*

PER CURIAM: **
       Presently before the Court are two consolidated appeals. In Case Number
14-60896, Patricia Anderson (“Anderson”), proceeding pro se, appeals the district
court’s summary judgment dismissal of her claims filed against her employer,
Harrison County, Mississippi (“Harrison County” or “the County”), pursuant to
the Americans with Disabilities Act (“ADA”) and Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq. In Case Number 15-60204, Harrison County
appeals the district court’s subsequent rejection of its request for an award of
attorney’s fees.        For the following reasons, we AFFIRM the district court’s
judgments in both matters.


                                                   I.
      Anderson, an African-American woman, began working, in 2007, as a
correctional officer for Harrison County at the Harrison County Adult Detention
Center (“the detention center” or “the center”). For much of her employment at
the center, Anderson was assigned to the position of canteen officer and was
supervised by Captain Elaine Lege. While working in that position, Anderson
worked an eight-hour shift on Monday through Friday.
       In April 2012, however, Major David Sanderson became the warden of the
detention center.          Upon assuming that position, he initiated a facility-wide



       *   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. 14-60896 cons/w No. 15-60204
restructuring of the correctional officer position designed to increase efficiency
and counteract staffing and budgetary shortfalls, which the center was
experiencing.     Sanderson’s first step was to evaluate the job duties and
responsibilities of all the correctional officers working at the center. As a result,
he decided that correctional officers then working eight-hour shifts in the booking
and offender services departments would be reassigned to the twelve-hour shifts
worked by the correctional officers with rotating, rather than fixed, duties. 1
      Sanderson began this transition in June 2012 with the booking
department.      Thereafter, in mid-September 2012, 2 the job duties previously
performed solely by the correctional officers assigned to certain offender services
positions, i.e., the disciplinary, courtroom, mail, and canteen clerks, became part
of the overall responsibilities shared by all of the correctional officers working
twelve-hour shifts. At the same time, all of the employees whose offender services
positions were eliminated, including Anderson, were reassigned to general
corrections officer positions with rotating twelve-hour shifts instead of eight-hour
shifts.
          Prior to implementing these changes, Sanderson met with each affected
employee and explained the nature of the transition. More specifically, Sanderson
met with Anderson in June or July of 2012 to inform her that her assignment as
a canteen officer would end in September and that, thereafter, that she would
work twelve-hour shifts as a general correction officer. In late August 2012,
Anderson took leave under the Family Medical Leave Act.                         When she
subsequently returned to work on September 17, 2012, the aforementioned



      1 In his deposition, Sanderson explained that corrections officers “rotate shift” every
ninety days. ROA 15-60204.397.

      2  This was the first ninety-day shift change occurring after Sanderson began re-
structuring the correctional center’s staff in June 2012.

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changes had been made. Three days later, Anderson submitted documentation
from her psychotherapist stating that she was suffering from severe anxiety and
depression and, as a result, could only work a 6-8 hour shift. Anderson was told,
however, that her request could not be accommodated because no position with
an eight-hour shift was available as a result of the restructuring.
      Dissatisfied with this result, Anderson commenced an action in federal
district court, on July 22, 2013, against Defendants Harrison County, the
Harrison County Adult Detention Center, the Mississippi Board of Supervisors
(the Board), Elaine Lege, and David Sanderson. In her complaint, Anderson
brought a claim under Title VII, alleging that her transfer from an eight to a
twelve-hour shift constituted discrimination on the basis of her race, and a claim
under the ADA, alleging that Defendants’ refusal to accommodate her depression
by allowing her to work a shorter shift constituted disability discrimination.
      On October 10, 2014, Sanderson and Lege filed a motion for summary
judgment in their individual and official capacities seeking to dismiss all claims
against them. Three days later, the County and the Board filed a document titled
“Joinder,” which provided that the County and the Board “hereby join in Warden
Sanderson and Captain Lege’s Motion for Summary Judgment” and “adopt[] and
incorporate[] . . . all of the contents, citations and authorities in said Motion and
Memorandum in Support.” 3 Subsequently, on November 6, 2014, the Board and
the County filed a document titled “Amended Joinder.” 4 This document was
substantially the same as the initial joinder and reiterated the County and the
Board’s intent to join in Sanderson and Lege’s motion for summary judgment.
The amended joinder, however, added a final clause explicitly stated, “Harrison




      3   ROA 15-60204.448
      4   ROA 15-60204.452

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                          No. 14-60896 cons/w No. 15-60204
County, Mississippi and Harrison County Board of Supervisors would move this
Court for Summary Judgment on their behalf.”
      In opposing the pending motion for summary judgment, Anderson objected
to Harrison County’s amended joinder as untimely, but nonetheless responded to
the issues raised by the motion relative to her Title VII and ADA claims. In that
document, she also withdrew her Family Medical Leave Act claim and agreed to
dismiss her remaining claims against all defendants except Harrison County. 5
The district court granted that request on November 20, 2014. 6             Shortly
thereafter, on December 1, 2014, the district court granted Harrison County’s
motion for summary judgment relative to the merits of Anderson’s Title VII and
ADA claims, and entered final judgment in its favor. Anderson’s appeal of that
ruling, in Case Number 14-60896, followed on December 18, 2014.
      In the meantime, on December 15, 2014, Harrison County filed a motion
seeking an award of the attorney’s fees authorized to a prevailing party in a
lawsuit brought under Title VII, 42 U.S.C. § 2000e-5(k), and under the Americans
with Disabilities Act, 42 U.S.C. § 12117(a). On February 25, 2015, the district
court denied that motion. Harrison County’s appeal of that ruling, in Case
Number 15-60204, followed on March 27, 2015.           The two appeals are now
consolidated for consideration by this Court.


                                        II.
      Anderson first argues that the district court erred in granting the County’s
motion for summary judgment because it filed the amended joinder after the
deadline for filing dispositive motions had elapsed. While the district court
determined that the County’s amended joinder was untimely, it held that the


      5   ROA 15-60204.470.
      6   ROA 15-60204.492.

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                       No. 14-60896 cons/w No. 15-60204
initial joinder the County filed was sufficient to put Anderson on notice of her
obligation to respond to the County’s motion for summary judgment. We agree.
Harrison County’s initial joinder gave Anderson ample notice that it was joining
in Sanderson and Lege’s pending motion for summary judgment and that it was
adopting their arguments in full.      Anderson conceded as much when she
represented to the district court that she had in fact responded to the County’s
arguments in her opposing brief. Consequently, Anderson had both sufficient
notice and a full opportunity to respond to the County’s motion for summary
judgment and the district did not err in considering it.
      Anderson next argues that the district court erred in holding that she failed
to make out a prima facie case of racial discrimination under Title VII. To
establish a prima facie claim of discrimination under Title VII a plaintiff must
demonstrate that: (1) she is a member of a protected class; (2) she was qualified
for her position; (3) she suffered an adverse employment action; and (4) the
adverse action was taken “under circumstances which give rise to an inference of
unlawful discrimination.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1980); Rutherford v. Harris Cnty., 197 F.3d 173, 179 (5th Cir. 1999); Jones
v. W. Geophysical Co. of America, 669 F.2d 280, 284-85 (5th Cir. 1982). “To raise
an inference of discrimination, the plaintiff may compare [her] treatment to that
of . . . similarly situated individuals.” Bryant v. Compass Grp. USA Inc., 413 F.3d
471, 478 (5th Cir. 2005). However, to make such a showing, “a plaintiff must
show that [s]he was treated less favorably than others under nearly identical
circumstances.” Willis v. Cleco Corp., 749 F.3d 314, 320 (5th Cir. 2014) (internal
quotations omitted). Comparators “with different supervisors[] [or] who work for
different divisions of a company . . . generally will not be deemed similarly
situated.” Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009).




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                         No. 14-60896 cons/w No. 15-60204
      Before the district court, Anderson argued that she was subject to
discrimination because she was required to change from an eight-hour shift to a
twelve-hour shift, whereas a white corrections officer, Mary Knebel, who worked
in sanitation, was not. We agree with the district court that Anderson’s claim
lacks merit given that she has failed to demonstrate that she and Knebel were
similarly situated.
      Rather, unlike Anderson, Knebel was a supervisor in charge of a kitchen
crew, a sanitation crew, and inmate workers. Further, according to Sanderson,
Knebel worked shifts ranging between eight and eleven hours, depending on her
job responsibilities that day, was “on call” at all times, and had responsibilities
equal to that of a sergeant. 7 Finally, given the nature of Knebel’s supervisory
responsibilities, which included the authority to retain or dismiss inmates from
worker status, it was not possible to simply reassign her duties to other
corrections officer, as Sanderson had done with the offender services positions
eliminated during restructuring. As a result of these differences, Knebel was not
sufficiently similar to serve as an appropriate comparator for Anderson’s change
of shift claim and the district court correctly dismissed it on that basis.
      We likewise affirm the district court’s dismissal of Anderson’s ADA claim.
The ADA defines discrimination to include, among other things:
      the failure to make reasonable accommodations to the known
      physical or mental limitations of an otherwise qualified individual
      with a disability . . . unless such covered entity can demonstrate that
      the accommodation would impose an undue hardship.
42 U.S.C. § 12112(b)(5)(A). To make out a failure to accommodate claim under
the ADA, a plaintiff must demonstrate that: (1) she is a qualified individual with
a disability; (2) the disability and its consequential limitations were known by



      7   ROA 15-60204.237

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                            No. 14-60896 cons/w No. 15-60204
the covered employer; and (3) the employer failed to reasonably accommodate
those known limitations. Feist v. La. Dep’t of Justice, Office of the Attorney Gen.,
730 F.3d 450, 452 (5th Cir. 2013). Although a reasonable accommodation may
include “part-time or modified work schedules,” E.E.O.C. v. LHC Grp., Inc., 773
F.3d 688, 697 (5th Cir. 2014) (quoting 42 U.S.C. § 12111(9)(B)), “an
accommodation that would result in other employees having to work harder or
longer is not required under the ADA.” Turco v. Hoechst Celanese Corp., 101 F.3d
1090, 1094 (5th Cir. 1996) (per curiam).
       Sanderson testified that Anderson’s request to work an eight-hour shift
was unworkable due to the detention center’s staffing and budget shortfalls.
According to Sanderson, even when all of the corrections officers worked twelve-
hour shifts, the facility often was short-staffed, requiring some of the higher-
ranking officers to feed the inmates and gather paperwork. As a result,
Anderson’s scheduling accommodation could not have been accomplished without
requiring other corrections officers to work longer hours and extended shifts. In
response, Anderson failed to submit any evidence that either rebutted or
undermined Sanderson’s testimony that her requested accommodation would
have caused this manner of hardship. We therefore affirm the district court’s
dismissal of Anderson’s ADA claim on that basis. 8




       8  Anderson also argues that the district court erred in dismissing her ADA claim because
the court analyzed the claim under a disparate treatment analysis rather than a reasonable
accommodation analysis as pleaded in the complaint. We agree that this was error. “A failure-
to-accommodate claim under the ADA is distinct from a claim of disparate treatment and is
analyzed separately under the law.” Bridges v. Dep’t of Soc. Servs., 254 F.3d 71, 71 n.1 (5th Cir.
2001) (unpublished); accord E.E.O.C. v. LHC Grp., 773 F.3d 688, 703 n.6 (5th Cir. 2014).
Nevertheless, we may affirm the district court on any basis supported by the record, which
reflects, in this instance, that Anderson failed to rebut the County’s showing that her requested
accommodation would have imposed an undue burden. Bridges, 254. F.3d at 71.

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                                         III.
       Title VII, 42 U.S.C. § 2000e-5(k), and the Americans with Disabilities Act,
42 U.S.C. § 12117(a), like 42 U.S.C. § 1988(b), authorize the court, in its
discretion, to award attorneys’ fees to the prevailing party. The purpose of these
provisions is to ensure “effective access to the judicial process for persons with
civil rights grievances.” Dean v. Riser, 240 F.3d 505, 507 (5th Cir. 2001) (quoting
Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (internal quotations omitted)).
“Therefore, a prevailing plaintiff is deserving of an award of attorney's fees
because they are assessed against a ‘violator of federal law.’” See Christiansburg
Garment Co. v. EEOC, 434 U.S. 412, 418, (1978).
      “In the case of prevailing civil rights defendants, however, the
aforementioned policy considerations, which support the award of fees to a
prevailing plaintiff, are inescapably absent.” Dean, 240 F.3d at 507. “As such,
‘[a] successful defendant seeking counsel fees . . . must rely on quite different
equitable considerations.” Id. (quoting Christiansburg, 434 U.S. at 419). Namely,
while Congress wanted to “‘make it easier for a plaintiff of limited means to bring
a meritorious suit,’” it also “wanted to protect defendants from burdensome
litigation having no legal or factual basis.” Id. at 420 (citation omitted).
       Although the language found in those statutes is discretionary, the
applicable standard differs if a defendant, rather than a plaintiff, prevails. More
specifically, a prevailing plaintiff ordinarily is awarded attorneys’ fees in all but
special circumstances. Dean, 240 F. 3d at 508 (citing Christiansburg 434 U.S at
406). “The supreme court has held that prevailing parties should be awarded
reasonable fees, absent exceptional circumstances rendering such an award
unjust.” Hensley, 461 U.S. at 429. Thus, a prevailing plaintiff in a civil rights
action is presumptively entitled to reasonable attorney's fees, unless a showing




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                        No. 14-60896 cons/w No. 15-60204
of “special circumstances” is made that would deem such an award unjust. See
Scham v. Dist. Courts Trying Criminal Cases, 148 F.3d 554, 557 (5th Cir.1998).
      A more rigorous standard exists, however, for awarding attorney's fees to
prevailing defendants. Dean, 240 F.3d at 508. That is, a district court may award
attorney's fees to a prevailing civil rights defendant only “upon a finding that the
plaintiff's action was frivolous, unreasonable, or without foundation.” Id. (citing
Christiansburg, 434 U.S. at 421; Hensley 461 U.S. at 429 n. 2)). Thus, attorney's
fees for prevailing defendants are presumptively unavailable unless a showing is
made that the underlying civil rights suit was “vexatious, frivolous, or otherwise
without merit.” Id. However, “the term ‘vexatious’ in no way implies that the
plaintiff’s bad faith is a necessary prerequisite to a few award against him.”
Christiansburg, 434 U.S. at 421.
      “The ‘stringent standard applicable to defendants is intended to ensure
that plaintiffs with uncertain but arguably meritorious claims are not altogether
deterred from initiating litigation by the threat of incurring onerous legal fees
should their claims fail.’” Myers v. City of West Monroe, 211 F.3d 289, 292 n. 1 (5th
Cir. 2000) (quoting Aller v. New York Bd. of Elections, 586 F. Supp. 603, 605
(S.D.N.Y.1984)). Similarly, a plaintiff’s voluntary dismissal of his complaint does
not automatically subject him to attorney’s fees:
                  [A] plaintiff whose claim appeared meritorious at
            the onset may encounter various changes in his litigation
            posture during the unpredictable course of litigation.
            “Decisive facts may not emerge until discovery or trial.
            The law may change or clarify in the midst of litigation.”
            Christiansburg, 434 U.S. at 423, 98 S. Ct. 694. Should
            such events create insurmountable problems of proof for
            the plaintiff, voluntarily withdrawing the complaint with
            prejudice would be the prudent thing to do. See Marquart
            [v. Lodge 837, 26 F.3d 842, 852 (8th Cir. 1994)].

                                      * * *

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                  With respect to the more calculating plaintiff, who
            voluntarily withdraws his complaint “to escape a
            disfavorable judicial determination on the merits,” the
            balance tips in favor of the counter policy to discourage
            the litigation of frivolous, unreasonable, or groundless
            claims. Id. Any rule that categorically forecloses the
            possibility of a defendant being found a prevailing party
            in such circumstances could seriously threaten the
            effectuation of this policy.

Dean, 240 F.3d at 510.
      The Court reviews de novo the question of whether a party is a prevailing
party. Davis v. Abbott, 781 F.3d 207, 213 (5th Cir. 2015). On the other hand, a fee
award, or the denial of fee request, is reviewed for abuse of discretion with factual
findings subject to review for clear error and conclusions of law reviewed de novo.
Davis, 781 F.3d at 213 (fee award); Vaughner v. Pulito, 804 F.2d 873, 878 (5th Cir.
1986) (denial of fee award).
      Applying these principles here, we agree with the district court that the
issue is a close one, in this instance, and that Harrison County’s arguments in
favor of a fee award are not without appeal. In the end, however, we decline to
find that the district court abused its discretion in denying Harrison County’s
request for attorney’s fees.
      In explaining its decision, the district court acknowledged the three factors
set forth in Myers v. City of West Monroe that, as argued by Harrison County,
seemingly favor an award of attorney’s fees. Emphasizing that those factors are
not the exclusive determinants of the issue, however, the district court also aptly
noted that Officer Knebel, while having differing job duties from those borne by
Anderson, did share the same overall classification of correctional officer. Thus,
Anderson’s discrimination claim, while flawed and ultimately futile, had enough



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factual support to avoid being characterized as “frivolous, unreasonable, or
without foundation.” The same is true of Anderson’s ADA claim.
         Further, while Anderson’s history of worker’s compensation claims gives
us some pause, Harrison County points to nothing in the record demonstrating
that the claims were completely unfounded. Thus, we agree with the district
court that neither it nor we are in a position to adjudge the merits of those claims.
Finally, regarding the parties that Anderson dismissed shortly before the district
court’s summary judgment ruling, the record is not such to demonstrate clear
error by the district court in concluding those dismissals resulted from
Anderson’s ongoing good faith examination of her claims during the course of the
proceeding, rather than simply a belated gesture designed solely to avoid an
imminent and unfavorable judicial determination on the merits.
         Accordingly, for these reasons, we AFFIRM the judgment of the district
court.




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