     Case: 16-30992      Document: 00514794690         Page: 1    Date Filed: 01/14/2019




           IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT


                                      No. 16-30992                    United States Court of Appeals
                                                                               Fifth Circuit

                                                                             FILED
                                                                      January 14, 2019
ERYON LUKE,
                                                                        Lyle W. Cayce
              Plaintiff - Appellant                                          Clerk


v.

CPLACE FOREST PARK SNF, L.L.C., doing business as Nottingham
Regional Rehab Center,

              Defendant - Appellee




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:13-CV-402


Before DAVIS, GRAVES, and COSTA, Circuit Judges.
PER CURIAM:*
       The district court granted summary judgment dismissing Eryon Luke’s
pregnancy discrimination claim. Because Luke has not presented evidence
that would allow a jury to discredit the employer’s nondiscriminatory reason
for firing her, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-30992
                                      I.
      Luke was a Certified Nursing Assistant (CNA) at a skilled nursing
rehabilitation center owned by CPlace Forest Park. When she learned that she
was pregnant with twins, she told CPlace the good news through a doctor’s
note. The note informed CPlace that she could continue working only if she
did not engage in heavy lifting for two weeks. Luke was given work that did
not involve heavy lifting by the weekend shift supervisor for two days, but
when the human resource manager returned, the manager sent her home.
      About ten days after the first note, Luke presented a second note from
her doctor that cleared her for work with no restrictions. She was back on the
job for about a month and a half before she presented a second doctor’s note
that said she should not lift more than thirty pounds for the duration of her
pregnancy.    CPlace said that it could not abide this, that all the CNAs
regularly had to lift more than thirty pounds, and that there was no light duty
work available for Luke. As a result, Luke took the pregnancy leave (up to four
months) she is entitled to under Louisiana law. LA. STAT. § 23:342(2)(b).
      About a month into her leave, Luke wrote a letter to CPlace telling them
that she would like to return to work and that she “was able to perform all of
my duties except lifting patients.” She wrote, “I ask that you work with me
and allow my supervisors to make reasonable adjustments to the type of work
I am able to perform while under doctor’s care.”
      When four months were up, CPlace told Luke that she was still “unable
to return to work” and fired her. She gave birth to her twins one month later.
      Luke sued CPlace, but the district court entered summary judgment
against her. While her appeal was pending, the Supreme Court decided Young
v. United Parcel Service, Inc., 135 S. Ct. 1338 (2015). In light of Young, we
vacated and remanded for reconsideration by the district court. Luke v. CPlace
Forest Park SNF, L.L.C., 608 F. App’x 246 (5th Cir. 2015) (per curiam). The
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                                 No. 16-30992
district court entered summary judgment again, finding that Luke did not
make out a prima facie case of discrimination. This appeal followed.
                                       II.
      Luke relies only on indirect evidence to support her claim.           Young
authorized use of the McDonnell Douglas burden shifting framework to
determine when such circumstantial evidence is enough to defeat summary
judgment in a case alleging that denial of an accommodation violated the
Pregnancy Discrimination Act. Young, 135 S. Ct. at 1353–54. The plaintiff
bears the initial burden of making out a prima facie case “by showing that she
belongs to the protected class, that she sought accommodation, that the
employer did not accommodate her, and that the employer did accommodate
others ‘similar in their ability or inability to work.’” Id. at 1354 (citing 42
U.S.C. § 2000e(k)).     If she does, the “employer may then seek to justify its
refusal   to   accommodate      the   plaintiff   by   relying   on    ‘legitimate
nondiscriminatory’ reasons for denying her accommodation.”            Id. (quoting
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). If the employer
offers that justification, the onus returns to the employee to show that the
reasons given by the employer were not its true reasons but a pretext for
discrimination. Id.; see also Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 143 (2000).
      The parties focus on the first step of this inquiry, as the district court
held that Luke could not make out a prima face case. Our review of a summary
judgment, however, is not limited to the rationale of the district court and we
may affirm on any ground supported by the record. See Holtzclaw v. DSC
Commc’ns Corp., 255 F.3d 254, 258 (5th Cir.2001). In addition to defending
the district court’s rationale, CPlace argues that we can affirm on the
alternative ground that it offers a nondiscriminatory reason—Luke’s inability
to perform an essential aspect of her job—that the evidence does not
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                                   No. 16-30992
undermine. Because we agree that Luke does not point to any evidence that
casts doubt on CPlace's justification, we affirm on that ultimate question
without deciding whether she established a prima facie case. See, e.g., Diggs
v. Burlington Northern & Sante Fe Ry. Co., 742 F. App’x 1, 4 (5th Cir. 2018);
Lay v. Singing River Health Sys., 694 F. App’x 248, 254 (5th Cir. 2017);
Easterling v. Tensas Parish Sch. Bd., 682 F. App’x 318, 322 (5th Cir. 2017) (all
assuming arguendo that the plaintiff could establish a prima facie McDonnell
Douglas case in affirming grants of summary judgment because plaintiff did
not offer evidence of pretext); see also Brady v. Office of Sergeant at Arms, 520
F.3d 490, 493–94 (D.C. Cir. 2008) (Kavanaugh, J.) (recommending that courts
focus on the pretext stage if the employer has identified a nondiscriminatory
reason for the employment action).
      CPlace asserts that it fired Luke because being able to lift more than
thirty-five pounds was essential to the job so certified nurses could lift
residents when needed. It further contends that it did not offer light duty
positions to its nurses.
      Luke does not point to evidence that casts doubt on this explanation. See
Willis v. Cleco Corp., 749 F.3d 314, 318 (5th Cir. 2014). She tries to show that
other workers were given accommodations that involved less lifting. But this
involved receiving help from coworkers when lifting, and there is no indication
that the employer directed these ad hoc accommodations.               Whether the
employer engaged in disparate treatment is the question when evaluating
whether its nondiscriminatory explanation should be discredited because it
has not been consistently applied. Cf. Rios v. Rossotti, 252 F.3d 375, 381 (5th
Cir. 2001) (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989)
(O’Connor,     J.,   concurring)      (explaining      why     statements       from
nondecisionmakers do not help a plaintiff unless she can show the employer
was acting as a cat’s paw for that coworker)). More fundamentally, none of the
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                                  No. 16-30992
workers who allegedly received these accommodations were, like Luke, under
a doctor’s orders not to engage in heavy lifting. Notably, when Luke’s doctor
cleared her for work after lifting the initial restriction, Luke was allowed to
return. It was only after the doctor again restricted her that Luke was not
allowed to work. Because Luke has not pointed to any other CNAs who were
accommodated when they had a similar medical restriction on heavy lifting,
there is not evidence that would allow a jury to conclude that CPlace is
insincere when it says that such lifting is an essential part of the job. Contrast
Young, 135 S. Ct. at 1355 (“[W]hy, when the employer accommodated so many,
could it not accommodate pregnant women as well?”).
                                     ***
      We AFFIRM the judgment of the district court. We also DENY Luke’s
motion to file a supplemental brief after oral argument as both parties were
afforded the full process of briefing and argument.




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