     Case: 14-10079      Document: 00512805103         Page: 1    Date Filed: 10/16/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-10079                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                         October 16, 2014
SONJA SHRYER,                                                              Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER AT
DALLAS; LEWIS CALVER; DANIEL K. PODOLOSKY,

              Defendants - Appellees




               Appeal from the United States States District Court
                        for the Northern District of Texas
                             USDC No. 3:12-CV-4270


Before JOLLY, SMITH, and CLEMENT, Circuit Judges..
PER CURIAM:*
       Sonja Shryer appeals the district court’s grant of summary judgment in
favor of the University of Texas Southwestern Medical Center at Dallas (“UT
Southwestern”) and employees Lewis Calver and Daniel Podolosky on her
claims under the Family Medical Leave Act (“FMLA”) and Americans with




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-10079
Disabilities Act (“ADA”). For the reasons that follow, we AFFIRM the district
court’s grant of summary judgment.
                                       I.
      Shryer is a former employee of UT Southwestern. She began working in
the university’s Budget Office in 2001. In 2005, Shryer was diagnosed with
Multiple Sclerosis (“MS”). Shryer soon experienced difficulty carrying out her
responsibilities in the Budget Office and, after two poor performance reviews,
requested to transfer to Southwestern Temps, UT Southwestern’s pool for
temporary employment within the university. In early 2008, Shryer was given
a temporary assignment in the Biomedical Communications Department
(“Department”). Her supervisor was Calver, the head of the Department. By
the time Shryer began her temporary assignment, she had physical
manifestations of MS symptoms, including walking with a cane. In March of
2008, Shryer was hired for a permanent, full-time position in the Department
as Education Coordinator.
      In July of 2008, Calver gave Shryer her first performance review. She
received a score of 3.6 out of 5, falling between the qualitative labels of
“consistently meets expectations” and “sometimes exceeds expectations.” In
her next review in 2009, Shryer’s score dropped to a 2.0, indicating that she
“sometimes does not meet expectations.” Shryer alleges that, when she met
with Calver to discuss her review, he asked her if she had a serious medical
condition.      She recounts that she told Calver she has MS, and that he
thereafter “openly expressed his frustration by making repeated comments
regarding [her] mobility, or by simply sighing heavily as [she] accomplished
[her] tasks.”
      In early 2010, Shryer applied for jobs outside of the Department, both
within and outside of UT Southwestern, but her search was unsuccessful. On
September 8, 2010, Shryer met with Ken Bradford, the Director of the Office
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                                No. 14-10079
of the Dean for the School of Health Professions, in which the Department was
located at the time. Bradford informed Shryer that the Department might be
closing in the near future. Bradford also discussed the possibility of Shryer’s
transferring to Southwestern Temps to find employment in another
Department within the university, as she had done in 2008. Shryer alleges
that Bradford informed her that Calver had complained to him about Shryer’s
lack of mobility and difficulties performing her job responsibilities. Bradford
advised Shryer to ask Calver to raise her latest performance review to a score
of 3.0 so that she would be eligible to bid for another position at UT
Southwestern in accordance with the university’s employee transfer policy.
      On September 15, 2010, Shryer met with Regina Jones, a Human
Resources Manager at UT Southwestern, to discuss the possibility of
transferring to Southwestern Temps. The next day, Shryer approached Calver
about the transfer to Southwestern Temps. Calver supported the transfer and
Shryer reported to Jones in an email the same day that Calver “wants to make
it work out for me.” After initially agreeing upon a September 30th transfer
date, Calver suggested that Shryer remain in the Department until October
15, 2010, so that the transition would not occur while he was out of the office
on vacation. On September 23, 2010, Shryer submitted a request to transfer
form to Jones and confirmed that October 15th would be her last day.
      Around the time of the transfer discussions, Calver provided Shryer with
her 2010 performance evaluation dated September 20, 2010. Calver gave
Shryer a score of 2.1, again indicating that she sometimes did not meet
expectations. Because Shryer needed a score of 3.0 to transfer to another
position, she asked Calver to change her score to a 3.0. Calver complied with
her request and issued a revised performance evaluation. On September 24,
2010, Calver provided Shryer with a letter entitled “Acceptance of
Resignation.” Shryer alleges that during this meeting, Calver told her that her
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                                 No. 14-10079
“memory is not good,” and remarked that “one of us has got to go, and it’s not
going to be me.” Calver then left for his two-week vacation.
      On September 27, 2010, Shryer visited her nurse practitioner. In her
patient notes, the nurse practitioner wrote that:
      Sonja says that she mainly wanted to see me today as she is
      concerned about her job situation. She says that she received a
      poor performance review because she was chronically late due to
      transportation problems. She also says she had difficulty
      managing the website due to her cognitive problems. She would
      like to transfer jobs within the same organization but cannot
      because her performance review is so low. She says that she is
      having difficulty processing what her boss tells her and he has
      accused her of “being too slow”.

      She became very weepy during the visit. She says that she has
      been to Human Resources and in the past they have offered the
      option of working as a temp, but she fears losing benefits. She does
      not really want to do temp work, but she feels that she is in danger
      of being fired from her job.
Shryer also met with a social worker during her visit, who advised her to take
FMLA leave. The next day Shryer requested six weeks of FMLA leave, which
UT Southwestern approved.
      On September 30, 2010, while on FMLA leave, Shryer emailed Jones
regarding the transfer process to Southwestern Temps. On October 11, 2010,
Shryer emailed Jones and Mike James—Assistant Vice President of Human
Resources—regarding her employment status. Shryer reaffirmed her intent to
transfer to Southwestern Temps, but disputed that she had “resigned” from
her position as Education Coordinator. Jones and James delayed Shryer’s
transfer until she returned from FMLA leave and found a temporary
assignment, during which time she would retain her employee benefits and full
salary. When Shryer returned from FMLA leave on November 8, 2010, she
resumed her position as the Department’s Education Coordinator.


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                                        No. 14-10079
        On December 8, 2010, Shryer was assigned to a full-time, temporary
assignment in the university’s Parking Services Department. Shryer was
informed that the university could not guarantee that she would receive
additional full-time work assignments or sufficient part-time work to maintain
her benefits eligibility. 1 Shryer attempted to bid on other positions within UT
Southwestern during her employment in Parking Services, but was prevented
from doing so because there was an “adverse action” in her file. On April 8,
2011, Shryer’s temporary assignment in Parking Services ended “due to
completion of all available work.” Jones told Shryer to contact her weekly to
check if temporary work was available, and explained that, if additional work
was not found, she would be removed from the payroll in accordance with UT
Southwestern policy. Because no temporary assignments became available,
Shryer called Jones one month later and asked to be removed from the
temporary pool so that she would be eligible for COBRA benefits as a
terminated employee.
        On November 28, 2011, Shryer filed a charge of discrimination with the
Equal Employment Opportunity Commission (EEOC) alleging disability
discrimination and retaliation. Shryer requested and received a right-to-sue
letter on July 26, 2012, and filed the instant lawsuit on October 22, 2012. The
district court granted summary judgment to defendants on Shryer’s
interference and retaliation claims under the FMLA and her discrimination
claim under the ADA. 2 Shryer timely appealed.

                                              II.



        1   Shryer had also received this disclaimer when she entered Southwestern Temps in
2007.
        2UT Southwestern also moved to dismiss Shryer’s claims on the basis of sovereign
immunity. Because the district court granted summary judgment to defendants on the
merits of Shryer’s claims, it dismissed the motion as moot.
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                                   No. 14-10079
      “We review a grant of summary judgment de novo, applying the same
standard as the district court.” Ion v. Chevron USA, Inc., 731 F.3d 379, 389
(5th Cir. 2013). 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). “No genuine issue of
material fact exists if the summary-judgment evidence is such that no
reasonable juror could find in favor of the nonmovant.” Jenkins v. Methodist
Hosps. of Dallas, Inc., 478 F.3d 255, 260 (5th Cir. 2007). To defeat a summary
judgment motion, the nonmovant cannot rest on her pleadings, but “must set
forth specific facts showing that there is a genuine issue for trial.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (internal quotation marks
omitted). A court weighing the motion must interpret all facts and draw all
reasonable inferences in favor of the nonmovant. Ion, 731 F.3d at 389.
                                       III.
                                        A.
      The FMLA provides eligible employees with twelve workweeks of leave
during a twelve-month period upon a triggering event, including “a serious
health condition that makes the employee unable to perform the functions of
[her] position.” 29 U.S.C. § 2612(a)(1)(D). The statute requires an employer to
restore an employee who takes FMLA leave to the position she held—or its
equivalent—when the leave commenced. Id. § 2614(a)(1). The statute also
prohibits an employer from retaliating against an employee for taking
protected leave. Id. 2615(a)(2).
      Shryer claims that defendants violated her substantive rights under the
FMLA and retaliated against her for taking leave by transferring her to
Southwestern Temps one month after she returned to work. These claims are




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                                      No. 14-10079
meritless. 3 Shryer requested to be transferred to Southwestern Temps, and
Calver agreed to that transfer, before she requested FMLA leave. Shryer’s
appointment with her nurse practitioner, which prompted her decision to take
FMLA leave, did not occur until September 27, 2010—one week after her
transfer had been solidified.         When Shryer took leave, her October 15th
transfer date to Southwestern Temps was simply postponed until she returned
and could be placed in a full-time temporary position. Further, she reaffirmed
her intent to transfer on October 11th, while she was out on FMLA leave.
Because Shryer had already arranged for her transfer to Southwestern Temps
before she requested FMLA leave, her FMLA claims based on her transfer fail.
See Shirley v. Precision Castparts Corp., 726 F.3d 675, 682 (5th Cir. 2013)
(“[D]enying reinstatement to an employee whose right to restored employment
had already been extinguished—for legitimate reasons unrelated to his efforts
to secure FMLA leave—does not violate the Act.”).
       Shryer’s    retaliation     claim    based     upon     her     termination     from
Southwestern Temps also fails. To make out a prima facie case of retaliation,
she must, among other things, first establish that she was terminated because
she took FMLA leave or that she was treated less favorably than an employee
who had not requested leave. Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d
757, 768 (5th Cir. 2001).         She must then show that UT Southwestern’s
explanation for her termination—that it followed its policy for employees in
the temporary pool—is pretext for retaliation. Id.
       Shryer requested to enter Southwestern Temps and knew that it was the
university’s policy to remove temporary employees from the payroll if they
could not find work within two pay periods. Shryer alleges that she was unable


       3Insofar as Shryer alleges that UT Southwestern interfered with her right to take
FMLA leave at all, this claim fails for the obvious reason that she was granted all the leave
she requested.
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                                         No. 14-10079
to secure additional temporary assignments because of the “adverse action” on
her file. But she does not provide any facts suggesting—or even allege—that
her inability to apply to additional assignments was linked to her FMLA leave.
She also fails to allege or show that other employees were treated more
favorably. She has thus failed both to establish a prima facie case of retaliation
and to rebut UT Southwestern’s non-retaliatory reason for terminating her.
The district court properly granted summary judgment to defendants on
Shryer’s FMLA claims.
                                                B.
       Shryer also alleges that her transfer to Southwestern Temps and
ultimate termination were discriminatory under the ADA.                          As an initial
matter, any ADA claim predicated upon her transfer is time-barred. A plaintiff
alleging discrimination under the ADA must file her charge with the EEOC
within 300 days of the alleged discriminatory act. 42 U.S.C. § 1217(a); id.
§ 2000e-5(e)(1); Ramirez v. City of San Antonio, 312 F.3d 178, 181 (5th Cir.
2002). Because Shryer’s transfer occurred on December 8, 2010, and her EEOC
complaint was not filed until November 28, 2011, she cannot recover for any
alleged damages stemming from the transfer alone. 4
       Shryer’s ADA claim based on her removal from Southwestern Temps—
her effective termination—also fails.               To make out a prima facie claim of
disability discrimination, Shryer must show that: “(1) she suffers from a
disability; (2) she is qualified for the job; (3) she was subject to an adverse



       4  Shryer argues for the first time on appeal that her ADA claim related to her transfer
is saved by the continuing violation doctrine. Because she did not make this argument in the
district court, it is waived. See Rosedale Missionary Baptist Church v. New Orleans City, 641
F.3d 86, 89 (5th Cir. 2011). And, in any case, it is incorrect. See Nat’l R.R. Passenger Corp.
v. Morgan, 536 U.S. 101, 114 (2002) (continuing violation doctrine is not applicable to
“[d]iscrete acts such as termination, failure to promote, denial of transfer, or refusal to hire”);
Mayers v. Laborers’ Health & Safety Fund of N. Am., 478 F.3d 364, 368 (D.C. Cir. 2007)
(applying Morgan to ADA claims).
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                                 No. 14-10079
employment action; and (4) she was replaced by a non-disabled person or was
treated less favorably than non-disabled employees.” Milton v. Tex. Dep’t of
Criminal Justice, 707 F.3d 570, 573 (5th Cir. 2013) (internal quotation marks
and alterations omitted).    If Shryer establishes a prima facie case and
defendants provide a non-discriminatory reason for her termination, she must
then show that the proffered justification is pretext for discrimination.
Gowesky v. Singing River Hosp. Sys., 321 F.3d 503, 511 (5th Cir. 2003).
      Defendants argue that Shryer cannot establish a prima facie case or
demonstrate pretext because she was removed from Southwestern Temps after
failing to secure another temporary assignment in accordance with UT
Southwestern policy. Shryer responds that she was pressured into entering
the temporary pool and then prevented from bidding on open positions—
eventually forcing her out of the program—because of the “adverse action”
demerit, which she alleges was the result of Calver’s “false and malicious
evaluations.”
      Insofar as Shryer is alleging that her transfer and eventual removal from
UT-Southwestern’s payroll together constituted a constructive discharge, her
claim fails.    The sum of Shryer’s evidence is that Calver gave her poor
performance reviews, sighed and occasionally commented on her mobility in
her presence, asked if she had a medical condition, and expressed frustration
to Bradford that Shryer was not adequately carrying out her responsibilities.
Even accepting Shryer’s version of the facts, her working condition in the
Department does not approach an “intolerable” level that would compel a
reasonable employee to transfer or resign. See Hunt, 277 F.3d at 771-72
(listing factors considered in determination of whether a constructive
discharge has occurred). Shryer relies heavily on Calver’s purported statement
that “one of us has got to go,” but she alleges that Calver made the remark
after she requested the transfer. It is clear that Shryer feared losing her job,
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                                     No. 14-10079
but she did not ask for a reasonable accommodation or otherwise address her
performance issues with Calver. See Taylor v. Principal Fin. Grp., Inc., 93 F.3d
155, 165 (5th Cir. 1996) (“If the employee fails to request an accommodation,
the employer cannot be held liable for failing to provide one.”). Shryer instead
chose to transfer to Southwestern Temps to find another position in the
university as she had done previously.              Calver never demonstrated an
intention to demote, transfer, or fire Shryer. Tension between an employer
and employee is not enough, standing alone, to constitute a constructive
discharge.
      Shryer also fails to put forth any evidence that her inability to apply for
additional full-time or part-time work after her first temporary assignment
was the result of disability discrimination. It is unclear why the university
deemed Shryer to have an “adverse action” against her, and neither side has
produced any evidence on this point. 5 Shryer asks this court to infer that the
mark in her file was the result of Calver’s “false and malicious” reviews. But
contrary to Shryer’s assertion that she had no performance issues (and thus
that her low evaluations were necessarily the product of discrimination), she
admitted to her nurse practitioner that she feared losing her job because she
was “chronically late” and “had difficulty managing the website.” And even if
Calver’s evaluations were “malicious,” Shryer fails to present any evidence
that the adverse action against her was related to her evaluations. Shryer
testified that Calver in fact raised her evaluation so that she would be eligible
to bid on positions within the university.




      5  Shryer testified that she knew about the notice sometime before January 19, 2011
and asked for clarification from several people—including Jones and James—but never
received it. She also testified that she called Human Resources and, although someone told
her that the prohibition would be removed, it remained in her file until April of 2011 when
she left Southwestern Temps.
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                                  No. 14-10079
      The only other explanation that Shryer offers for the adverse action is
Calver’s characterization of her transfer as a resignation. Calver testified that
the “Acceptance of Resignation” letter he presented to Shryer was a form letter
delivered to him from the Office of Human Resources (the letter included an
“xc” notation—or Xerox copy—copying Human Resources). Shryer also stated
that she informed Jones and James about the letter and contested that she was
resigning. Neither party indicates whether this was standard protocol for an
employee leaving a department to enter the temporary pool or an error. But
in either case, there is no evidence that labeling Shryer’s departure from the
Biomedical Communications Department a “resignation”—even if it resulted
in the “adverse action” label that prevented her from bidding on assignments—
was the product of disability discrimination.
      It is undisputed that Shryer approached Calver about a transfer and that
Calver raised her performance evaluation to comply with her request. Shryer’s
attempt to link her inability to bid on additional positions once she entered
Southwestern Temps rests on a conspiracy theory. She alleges that: (1) Calver
gave her low performance evaluations because of his animus towards her
disability; (2) forcing her to look for work outside of his department; (3) leading
her to seek advice from Bradford, to whom “Calver [had] expressed his
discriminatory plan,” and who suggested that she transfer to Southwestern
Temps; (4) Calver accepted her transfer and raised her performance evaluation
score with the ultimate goal of forcing her out of employment of any kind with
UT Southwestern; and (5) Human Resources engaged in a department-wide
cover-up to prevent her from discovering the reason for the “adverse action”
notation in her file. While an inference may be drawn that the “adverse action”
designation was an error, Shryer offers nothing but her own speculation in
support of her claim that it was issued because of her disability. See Lechuga
v. S. Pac. Transp. Co., 949 F.2d 790, 798 (5th Cir. 1992) (“Conclusory
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                                No. 14-10079
statements in an affidavit do not provide facts that will counter summary
judgment evidence, and testimony based on conjecture alone is insufficient to
raise an issue to defeat summary judgment.”). Shryer does not provide any
facts creating a genuine dispute as to defendants’ liability under the ADA.
                                     IV.
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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