     Case: 15-20018      Document: 00513425294         Page: 1     Date Filed: 03/15/2016




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                       __________

                                      No. 15-20018
                                       __________
                                                                      United States Court of Appeals
                                                                               Fifth Circuit

                                                                             FILED
JACLYN R. JURACH,                                                      March 15, 2016
                                                                        Lyle W. Cayce
      Plaintiff-Appellant                                                         Clerk



v.

SAFETY VISION, LLC,

      Defendant-Appellee
                                _____________________

                  Appeal from the United States District Court
                       for the Southern District of Texas
                             USDC No. 4:14-CV-44
                             _____________________

Before DENNIS and COSTA, Circuit Judges, and ENGELHARDT, District
Judge. ∗

KURT D. ENGELHARDT, District Judge:               **


      Jaclyn Jurach (“Jurach”) sued her former employer, Safety Vision, LLC
(“Safety Vision” or “the Company”), in state court for disability discrimination,
failure to accommodate, and retaliatory discharge, all under the Texas
Commission on Human Rights Act (“TCHRA”), section 21.001 et seq. of the


∗
      District 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-20018

Texas Labor Code. Safety Vision removed the action, before prevailing on
summary judgment before the district court. Jurach appeals. We affirm.


                               BACKGROUND
      Jurach worked at Safety Vision for nearly five years, from January 2006,
until her termination on October 14, 2010. For the duration of her employment,
Jurach was disabled, and she remains so today. Jurach’s disability relates to
ailments in both eyes. Prior to her tenure at Safety Vision, Jurach experienced
a detached retina in her left eye. Then, in early 2010, Jurach underwent
surgery for a similar medical issue in her right eye. Complications from the
2010 surgery left Jurach suffering from mydriasis, a condition involving the
permanent dilation of the pupil. As a result of the condition of her eyes, Jurach
experienced headaches, varying in degree of severity, as early as the first
month of her employment at Safety Vision. However, only over time did she
realize that fluorescent lighting incited the headaches.
      When she first began at Safety Vision, Jurach worked on the second floor
of her employer’s two-story office building in a cubicle with fluorescent lights
overhead. At that time, only months removed from what would be the first of
two eye surgeries, she was unaware that fluorescent light was the culprit of
her “worst pain.” However, Jurach did communicate to her supervisor that she
was having difficulty seeing her computer screen. Safety Vision, in response,
provided Jurach with a larger monitor, which she found to be helpful. Then,
still in the first year of her employment, Jurach took a personal leave of
absence in late July of 2006 that lasted roughly three months. When she
returned, Jurach was assigned to a different cubicle and given a monitor
equally as large as the one she had before. Although still located in the
proximity of fluorescent lights, this second cubicle had the advantage of


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natural light from an adjacent window. By this time, Jurach had become aware
that fluorescent light aggravated the headaches she continued to suffer.
However, she never requested any of the fluorescent rods in the ceiling be
disengaged. Instead, Jurach attempted to reduce exposure to them by
positioning herself facing the wall, such that all of the fluorescent lights were
located behind her. Despite the presence of natural light from the adjacent
window, and Jurach’s efforts to shield herself, Jurach’s headaches continued.
      For personnel reasons extraneous to the instant matter, Safety Vision
moved Jurach in late 2007 to a windowless interior office that she would share
with an engineer. While this office was also lit by overhead fluorescent lights,
Jurach enlisted coworkers to help her disengage the fluorescent rods over her
area of the shared office. Despite experiencing more pain in the shared office
than she had in the cubicle before, Jurach admits that, to this point, she had
never asked for an accommodation other than the large computer monitor.
      In September of 2008, after Jurach had spent nearly a year assigned to
the shared office, Safety Vision rearranged personnel and moved Jurach to a
private office that also had overhead fluorescent lighting and no windows.
Jurach, again, disengaged some but not all fluorescent rods in this private
office. Often, she turned off those lights that remained overhead and, instead,
worked by the light of a lamp that she had brought from home. Although the
headaches continued, Jurach described the private office as the best workspace
she ever had at Safety Vision.
      In late 2008 or early 2009, after she had moved into the private office,
Jurach made her first request connected to fluorescent-light sensitivity, when
she asked then-Marketing Director, Teresa Phillips, for a private office with a
window. Jurach would later request a windowed office from Engineering
Director, Chris Fritz, in or about February 2009, as well as Human Resource


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Director, Vicki Hammett, around the same time. She was informed on each
occasion that none was available.
      A year later, when Jurach underwent surgery in February, 2010, she was
allowed a month-long medical leave of absence to recuperate. As previously
noted, this 2010 surgery resulted in optical nerve damage that left Jurach
suffering from mydriasis. Upon her return to work in March of that year,
Jurach found that she had an increased sensitivity to florescent light, and,
three weeks later, she emailed a request for a windowed office to Chief
Operations Officer, Lawrence Rominger (“Rominger”), stating that artificial
light was “hard on her eyes.” Rominger responded, on April 19, that Safety
Vision was formulating plans to relocate Jurach and the Marketing
Department, and that he would pay attention to her "situation." Jurach, in
reply, expressed a need for a quiet space to review contracts and complete other
tasks made difficult by distractions. At her deposition, Jurach admitted that
Rominger's promise to consider her request in the relocation was "reasonable"
at the time.
      Safety Vision relocated Jurach and the Marketing Department five
months later, at the beginning of September, 2010. In the days preceding the
move, Jurach learned that she was destined for a cubicle, so she raised
concerns with newly-hired Marketing Director, Charon Dilber (“Dilber”), as
well as Chief Financial Officer, Michael Ondruch (“Ondruch”). Dilber
reassured Jurach that her disability would receive his foremost attention.
Ondruch requested a doctor’s note describing the condition and appropriate
accommodation. Safety Vision then assigned Jurach to a cubicle next to a large
window. The headaches nonetheless persisted.
      Jurach requested reassignment soon thereafter, citing as the reason not
only her sensitivity to artificial light, but also the temperature of the room and


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eavesdropping coworkers. In a conversation on September 2, 2010, Safety
Vision’s Chief Executive Officer, Bruce Smith (“Smith”), asked Jurach to give
the new workspace a try first. In subsequent discussions with Dilber, Jurach
stated that she needed an office so that she could have a door to close from
distractions. She proposed that a windowless room, used at the time to hold
marketing materials, be converted into her private office. Safety Vision
declined.
      It would take Jurach until the end of September to produce the doctor’s
note that Ondruch had requested in August. At a meeting with Ondruch on
September 27, 2010, Jurach presented her CFO with the letter, dated
September 20, 2010, stating that she “suffers from constant dilation, which
causes severe light sensitivity to her eyes.” In a subsequent letter, received by
Jurach in early October, her doctor elaborates: “If you can possibly
accommodate [Jurach] to a less lighted area, it would be very beneficial to her.”
Safety Vision disputes having ever been given the second letter. In any event,
after their meeting on September 27, Ondruch assured Jurach that he would
“take [her] request into consideration.” Ondruch allegedly called Jurach’s
doctor, whose assistant told him that appropriate accommodations would
include “dimmer lights,” “tinted glasses,” and “fewer hours working on
computer monitors.”
      As a temporary accommodation, Jurach proposed to Dilber that she be
allowed to work from home each week on Monday and Friday afternoons, and
all day on Wednesday. Dilber accepted the proposal and instructed Jurach, in
an email on September 29, to begin this home-office arrangement immediately.
In addition, Dilber sought to secure, for Jurach’s use, a conference room on the
first floor of the building, in which meetings were only occasionally held.




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Jurach would be fired fifteen days later, however, before a long-term solution
was found.
      Jurach’s termination was part of a multi-phase reduction in force (“RIF”)
claimed by Safety Vision to have been implemented as a “strategic business
cost reduction plan” in response to a global financial crisis. In total, the
Company laid off twenty-four employees, or twenty-five percent of its
workforce, and reduced its annual payroll by over a million dollars. While
Jurach survived the first two phases of the RIF, consisting of fifteen lay-offs
and occurring in June and August of 2010, she was not as fortunate in the third
and final phase. On October 14, 2010, Jurach was terminated along with eight
other employees. Ultimately, her position as Trade Show Coordinator was
subsumed by Melissa Foteh (“Foteh”), a younger marketing employee who was
not disabled and was paid less than Jurach.


                               DISCUSSION
      I.     Objection to Removal
      Jurach first argues that the district court erred by not granting her
motion to remand, which she filed as an alternative pleading to a motion to
amend her complaint. The motion to remand was based on the timeliness of
Safety Vision’s removal, which is a procedural challenge that may be waived.
See Harris v. Edward Hyman Co., 664 F.2d 943, 945 (5th Cir. 1981) (noting
that “strict compliance with the limitations period in the removal statute does
not affect the jurisdiction of the district court and that ‘failure to file the
petition within the allotted time may be waived’”) (quoting Weeks v. Fidelity &
Cas. Co., 218 F.2d 503, 504 (5th Cir. 1955)). Although Rule 8 of the Federal
Rules of Civil Procedure permits the alternative pleading of inconsistent
claims and defenses, a plaintiff risks waiver by participating in federal court


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proceedings, beyond the filing of a motion to remand. See Harris, 664 F.2d at
945. Other circuits too have made this point clear. See Koehnen v. Herald Fire
Ins. Co., 89 F. 3d 525, 529 (8th Cir. 1996). 1
       In this case, Jurach couched her request for remand as a fall back to her
motion to amend, stating at the outset of the pleading: “[I]f the motion to
amend is not granted, Plaintiff moves the court to remand this action.” Because
the district court granted the motion to amend, it is not necessary for us to
consider the issue of whether a plaintiff may move for remand in the
alternative, without waiving a procedural objection to removal, and, if so,
whether Jurach erred in the order of her motions. She received the very object
of her design.
       II.     Objections to Summary Judgment
       This Court reviews de novo the decision of a district court to grant
summary judgment, applying standards identical to those used at the trial
level. Pratt v. City of Houston, 247 F.3d 601, 605-06 (5th Cir. 2001) (citing
Walker v. Thompson, 214 F.3d 615, 624 (5th Cir. 2000)). The initial burden is
on the moving party to demonstrate to the court an absence in the record of a
genuine issue of material fact. Triple Tee Golf, Inc. v. Nike, Inc., 485 F.3d 253,
261 (5th Cir. 2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986)).
If successful, the burden shifts to the nonmoving party, who must "go beyond
the pleadings and by her own affidavits, or by the depositions, answers to
interrogatories, and admissions on file, designate specific facts showing that


1       In Koehnen, the Eight Circuit affirmed the denial of a motion to remand based on the
plaintiff’s “prior affirmative conduct in federal court.” 89 F. 3d 525, 529 (8th Cir. 1996). There,
the plaintiff first filed a motion for leave to file a new complaint, which the district court
denied before hearing a subsequent motion to remand. Id. at 528. Rather than briefing and
arguing the first substantive motion, the Koehnen court reasoned that the plaintiff should
have moved to have the motion withdrawn or its consideration stayed, pending the outcome
of the remand motion. Id. Because he did not, the court concluded that the plaintiff was
forbidden from unfairly taking “a second bite at the apple.” Id.
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there is a genuine issue for trial." Celotex, 477 U.S. at 324. “This burden will
not be satisfied by ‘some metaphysical doubt as to the material facts, by
conclusory allegations, by unsubstantiated assertions, or by only a scintilla of
evidence.’” Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005)
(quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994)). Rather,
the nonmoving party must establish with specific facts a genuine dispute as to
each essential element of a claim. Id. Creating a “genuine” dispute requires the
nonmoving party to produce evidence sufficient to enable a reasonable jury to
return a verdict in its favor. Id. Summary judgment is proper if the court, after
reviewing the evidence in the light most favorable to the nonmoving party,
determines that there is no genuine factual dispute and the moving party is
entitled to judgment as a matter of law. See Smith v. City of Jackson, 351 F.3d
183, 185 (5th Cir. 2003).
      1. Failure-to-Accommodate Claim
      Jurach argues that Safety Vision failed to accommodate her disability,
in violation of the Texas Commission on Human Rights Act (TCHRA), TEX.
LAB. CODE § 21.001 et seq. An express purpose of Chapter 21 is to provide for
the execution of the policies embodied in Title I of the Americans with
Disabilities Act of 1990 (ADA) and its subsequent amendments. TEX. LAB.
CODE § 21.001(3); see Talk v. Delta Airlines, Inc., 165 F.3d 1021, 1024 n.4 (5th
Cir. 1999). Accordingly, Texas state courts apply analogous federal statutes
and cases when interpreting the TCHRA. See Talk, 165 F.3d at 1021; Hoffman-
La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 445-46 (Tex. 2004) (“[F]ederal
case law may be cited as authority in cases relating to the Texas Act.”). The
ADA and TCHRA place an affirmative duty on covered employers to
reasonably accommodate the known mental and physical limitations of their
employees. See Picard v. St. Tammany Parish Hosp., 611 F.Supp.2d 608, 618


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(E.D.La. 2009). To make out a failure-to-accommodate claim, a plaintiff must
show: (1) she is a qualified individual with a disability; (2) her employer knew
of the disability and its consequential limitations on the plaintiff; and (3) the
employer failed to make reasonable accommodations for such known
limitations. Feist v. Louisiana Dep’t of Justice, Office of the Atty. Gen., 730 F.3d
450, 452 (5th Cir. 2013). When an employer is required by law to provide an
accommodation, its failure to do so is considered a prohibited form of
discrimination. Picard, 611 F.Supp.2d at 618.
      In the case sub judice, Safety Vision challenges neither Jurach’s status
as a qualified individual nor its knowledge of her disability and consequential
limitations. Jurach’s appeal on this claim, therefore, turns on whether Safety
Vision fell short of its duty to reasonably accommodate Jurach.
      An employee’s request for an accommodation triggers an obligation on
behalf of the employer to engage with good faith in an interactive process to
identify an appropriate accommodation. See Griffin v. United Parcel Service,
Inc., 661 F.3d 216, 224 (5th Cir. 2011). The purpose of this required interaction
is for the parties to identify reasonably available accommodations. See
Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 735-36 (5th Cir. 1999) (explaining
the need for a bilateral dialogue due to information asymmetry). The exact
contours of the process are unique to each case. Id. An employer is liable when
its unwillingness to participate in the process leads to a failure to reasonably
accommodate. Griffin, 661 F.3d at 224. However, “[a]n employer that
‘demonstrates good faith efforts’ to engage in the interactive process and to
make a reasonable accommodation is shielded from liability.” Picard, 611
F.Supp.2d at 621 (E.D.La.2009) (citing 42 U.S.C. § 1981a(a)(3)). Ultimately,
both the employer and the employee are obligated to communicate with one
another so that the process of identifying an appropriate accommodation can


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unfold. See Loulseged, 178 F.3d at 737. In situations “where the disability,
resulting limitations, and necessary reasonable accommodations, are not open,
obvious, and apparent to the employer,” the burden is primarily on the
employee “to specifically identify the disability and resulting limitations, and
to suggest the reasonable accommodations.” Griffin, 661 F.3d at 224 (quoting
E.E.O.C. v. Chevron Phillips Chem. Co., 570 F.3d 606, 621 (5th Cir.2009)). 2
      In this case, Safety Vision’s obligation to engage with good faith in an
interactive process arose, at the earliest, when Jurach made her first
workspace request related to her sensitivity to fluorescent light, which occured
in late 2008 or early 2009. The request was specifically for a private office with
windows. At the time, no such space was available, and Jurach was already
assigned to a private interior office in which she was permitted to have
disengaged as many of the fluorescent lights overhead as she pleased and work
by lamplight. This setting was remarkably close to what Jurach describes in
her affidavit as an appropriate accommodation: an area lit by lamp and not
fluorescent lights. In fact, prior to Jurach’s second eye surgery in February,
2010, she admits to finding the interior offices to be “tolerable.” She also
described Rominger’s promise in April, 2010 to pay attention to her situation
in an upcoming relocation of the Marketing Department as “reasonable.”
Beyond a private office with windows, which were to be found only on the
second floor of Safety Vision’s two story building, Jurach made no other
suggestions as to how her sensitivity to artificial light could be accommodated
until the very end of her employment.


2       If the need for a requested accommodation is not obvious, an employer may require
that the employee provide medical documentation in advance. Taylor v. Principal Fin. Grp.,
Inc., 93 F.3d 155, 165 n.9 (5th Cir.1996) (citing EEOC Interpretive Guidance, 29 C.F.R. §
1630.9, App.). However, the courts have not construed this rule to allow employers, such as
Safety Vision, to delay in demanding documentation and then use the delay as a defense to
its otherwise inexcusable failure to make an accommodation sooner.
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       When Safety Vision moved Jurach and the Marketing Department to the
second floor in September of 2010, it assigned Jurach to a cubicle next to a
large exterior window. The cubicle, while it may not have been the windowed
office that Jurach would have preferred, had the perceived advantage of
natural light. When she expressed dissatisfaction, maintenance personnel
disengaged fluorescent rods near her workspace. Jurach, however, still found
the accommodation to be inadequate and requested that she be returned to an
interior office. Then, in late September, more than a month after Safety Vision
had requested medical documentation, Jurach produced the first of two
doctor’s notes, both of which failed to provide clear accommodation
instructions. 3 Just days later, a provisional arrangement was put in place
allowing Jurach to work from home on three days of the week, while her
manager, Dilber, sought a better solution. Unfortunately, Jurach would be
released two weeks later.
       As frustrated as Jurach may have been with the Company's apparent
lack of an established procedure for fielding accommodation requests, the
evidence does not show that Safety Vision demonstrated bad faith or an
unwillingness to engage in efforts to identify and provide a reasonable
accommodation. Rather, the process was complicated – and protracted – by the
inconsistent reasons that Jurach gave for her accommodation requests; the
ambiguous medical documentation that she produced; and, ultimately, her
insistence on a preferred accommodation, to which she was not necessarily
entitled. By the fall of 2010, the evidence reveals that Safety Vision was
actively seeking a reasonable solution that Jurach would also find to be
suitable. The third phase of the RIF in October of 2010 curtailed those efforts.



3     Of the two notes from her healthcare provider, the most instructive merely stated that
Jurach would benefit from less light.
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That is not to say, however, that Safety Vision failed its obligation to
participate with good faith in an interactive process. Because Jurach has not
created a genuine dispute on this point, the district court's grant of summary
judgment on the failure-to-accommodate claim is affirmed.
      2. Discriminatory Discharge
      In an employment discrimination case where the plaintiff presents only
indirect or circumstantial evidence, Texas courts adhere to the burden shifting
framework promulgated by the U.S. Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Tex. Dep't of State Health Servs. v.
Rockwood, 468 S.W.3d 147, 152–53 (Tex.App.-San Antonio 2015, no pet.).
Under this McDonnell Douglas approach, “the plaintiff is entitled to a
presumption of discrimination if she meets the ‘minimal’ initial burden of
establishing a prima facie case of discrimination.” Mission Consol. Ind. Sch.
Dist. v. Garcia, 372 S.W.3d 629, 634 (Tex. 2012). To satisfy her initial burden,
the plaintiff must proffer evidence that: (1) she was disabled, or was regarded
as disabled; (2) she was qualified for her job; and (3) she was subject to an
adverse employment decision on account of her disability. Cannon v. Jacobs
Field Servs. N. Am., Inc., 2016 WL 157983, at *2 (5th Cir. Jan. 13, 2016) (citing
EEOC v. LHC Grp., Inc., 773 F.3d 688, 697 (5th Cir. 2014)).
      Upon the successful demonstration of the plaintiff’s prima facie case, the
burden of production shifts to the defendant to articulate a “legitimate,
nondiscriminatory reason” for the adverse employment decision, whereby the
presumption of discrimination disappears. Culwell v. City of Fort Worth, 468
F.3d 868, 873 (5th Cir. 2006). The burden of persuasion then returns to the
plaintiff to identify or offer evidence creating a factual dispute “either (1) that
the defendant’s reason is not true, but is instead a pretext for discrimination;
or (2) that the defendant’s reason, while true, is only one of the reasons for its


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conduct,   and     another   motivating    factor    is   the   plaintiff’s   protected
characteristic (‘mixed-motives alternative’).” Michael v. City of Dallas, 314
S.W.3d 687, 691 (Tex. App.—Dallas 2010, no pet.) (quoting Rachid v. Jack in
the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004)).
      Evening assuming that Jurach establishes her prima facie case, she does
not create a factual dispute on the issue of pretextual discrimination. To
establish pretext, a plaintiff “must put forth evidence rebutting each of the
nondiscriminatory reasons the employer articulates.” Jackson v. Watkins, 619
F.3d 463, 467 (5th Cir. 2010). As a nondiscriminatory reason for the
termination, Safety Vision states that it included Jurach in a three-phase RIF,
implemented by the Company to cut costs as it weathered the recession in
2010. More specifically, Safety Vision explains that its decision to include
Jurach in the lay-offs made sense because the position she held as Trade Show
Coordinator had not been a stand-alone position prior to 2007, and that it was
able to reassign Jurach’s job responsibilities to a lower-paid employee, Foteh.
In addition, at the time of the termination, Jurach’s manager, Dilber, stated
that the Company intended to reduce its participation in trade shows. In
response to these reasons given for the termination, Jurach only offers
evidence indicating that Safety Vision’s trade show attendance may not have
declined after she was let go. Jurach does not refute that Safety Vision needed
to cutback costs or show that it did not act in furtherance of this objective by
eliminating the position of Trade Show Coordinator. Because she does not
sufficiently rebut each of Safety Vision’s articulated reasons, the only way
Jurach can avoid summary judgment on her discriminatory discharge claim is
to present evidence that her disability motivated the termination decision. This
she does not do.




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       As evidence of Safety Vision’s purported discriminatory motive, Jurach
cites the reassignment of trade show coordinating duties to Foteh. Arguing
that no rational basis existed for this arrangement, Jurach notes that the job
required supervising an “older, seasoned” sales force and Foteh was only a
recent college graduate with less experience than she. To the extent it is proper
to compare and contrast the qualifications of the two employees, the Court is
unmoved by Jurach’s argument. See Little v. Tex. Dept. of Criminal Justice,
177 S.W.3d 624, 632 (Tex.App.-Houston [1st Dist] 2005, no pet.) (“[E]vidence
of relative qualifications must be more than merely subjective and
speculative.”); Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 959 (5th Cir. 1993)
(explaining that, while time may prove a personnel decision to have been poor,
the courts were not intended to be second-guessers of employment decisions or
personnel managers). Safety Vision offers multiple reasons in support of its
decision to replace Jurach with Foteh. In addition to the aforementioned facts
that Foteh made less money and that the role of Trade Show Coordinator had
only become an independent position just a few years prior, the record shows
that Foteh was the only one of the two with a college degree. Thus, if there is
an illicit inference to be taken from Jurach’s replacement, it requires the Court
to   make    subjective   and   speculative   conclusions    regarding    Foteh’s
qualifications for the job. The evidence on this point is ultimately too weak to
create a genuine issue concerning the Company’s motivation.
       In addition, Jurach argues that her disability’s impact on the Company’s
healthcare expenditures drove its decision to terminate her. To support this
contention, Jurach invokes Safety Vision’s purported treatment of another
employee, Charles Garrett (“Garrett”), who had cancer at the time he was hired
by Safety Vision and was kept on COBRA continuation coverage from a
previous employer. When the COBRA coverage expired, Jurach alleges that


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                                  No. 15-20018

Safety Vision terminated Garrett to avoid having to place him on the
Company’s health insurance rolls. Likewise, Jurach argues that Safety Vision
fired her to avoid costs associated with her disability.
      Even if the citations to the record provided by Jurach supported her
allegations, she has not shown an illicit inference from Safety Vision’s
treatment of Garrett to be warranted. First, the Company was aware of the
medical conditions of both Garrett and Jurach at the time they were hired.
Second, Garrett not only agreed to stay on his COBRA coverage at that time
he was hired, but he has actually stated that he preferred the arrangement.
Finally, Jurach does not proffer any evidence or argument to refute the position
of Safety Vision’s that it had no knowledge of the individualized impact of its
employees on the Company’s health insurance costs. Ultimately, Jurach’s
argument is supported only by the proximity in time between the expiration of
Garrett’s COBRA benefits and his termination. Alone, the timing of the two
events amounts to but a mere scintilla of evidence of discriminatory motive.
Accordingly, the district court properly disposed of this discriminatory
discharge claim.
      3. Retaliation Claim
      The TCHRA forbids an employer from retaliating against an employee
who engages in certain protected activities, such as opposing a discriminatory
practice. TEX. LAB. CODE § 21.055. As with discriminatory discharge claims,
the McDonnell Douglas burden-shifting framework similarly applies to
retaliation claims. This framework requires a plaintiff to make first a prima
facie showing that: (1) a protected activity occurred; (2) an adverse employment
action followed; and (3) a causal link existed between the protected activity and
the adverse employment action. Chandler v. CSC Applied Technologies, LLC,
376 S.W.3d 802, 822 (Tex. App.-Houston [1st Dist.] 2012, pet. denied). Once a


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prima facie showing has been made, and the defendant articulates a legitimate
reason for the adverse employment action, a plaintiff is left to demonstrate
that “the employer’s stated reason for the adverse action was merely a pretext
for the real, discriminatory purpose.” Pineda v. United Parcel Service, Inc., 360
F.3d 483, 487 (5th Cir. 2004) (quoting Gee v. Principi, 289 F.3d 342, 345 (5th
Cir. 2002)). To avoid summary judgment, a plaintiff arguing pretext is required
to “show ‘a conflict in substantial evidence’ on the question of whether the
employer would not have taken the action ‘but for’ the protected activity.” Feist
v. Louisiana Dep’t of Justice, Office of the Atty. Gen., 730 F.3d 450, 454 (5th
Cir. 2013). Evidence is substantial if it is “of such quality and weight that
reasonable and fair-minded persons in the exercise of impartial judgment
might reach different conclusions.” Rhodes v. Guiberson Oil Tools, 75 F.3d 989,
993 (5th Cir. 1996) (citing Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.
1969) (en banc)).
      Here, even if we again assume that Jurach establishes her prima facie
case, she fails to overcome Safety Vision’s legitimate, non-discriminatory
reason for her termination: a RIF due to the Company’s declining financial
state. Jurach’s rebuttal is premised heavily on the temporal proximity of the
accommodation requests she made to the Company’s top executives, Smith and
Ondruch, and her termination thereafter. While close timing may be sufficient
evidence of the casual connection needed for a plaintiff’s prima facie case, “once
the employer offers a legitimate, nondiscriminatory reason that explains both
the adverse action and the timing, the plaintiff must offer some evidence from
which the jury may infer that retaliation was the real motive.” Swanson v. Gen
Servs. Admin, 110 F.3d 1180, 1188 (5th Circ. 1997); see Love v. Motiva
Enterprises LLC, 349 F. App’x 900, 905 (5th Cir. 2009) (“The suspicious timing




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   Case: 15-20018     Document: 00513425294      Page: 17   Date Filed: 03/15/2016


                                  No. 15-20018

of employment action along with significant other evidence of pretext can
defeat a summary judgment motion.”).
      As proof of retaliation, Jurach relies on two instances of post-termination
conduct by Safety Vision. First, Safety Vision conditioned the provision of a
letter of recommendation for Jurach on her execution of a severance agreement
that was given to all terminated employees. Second, Safety Vision reduced the
amount of a gratuitous payout that it made to Jurach to recover expenses she
incurred and charged after she had been let go. While subsequent behavior
may be probative of an employer’s intent at the time of termination, the actions
of Safety Vision in this instance were innocuous. Notably, it was obligated to
provide neither the recommendation letter nor the severance payment, but did
so voluntarily. Moreover, there is no evidence that Safety Vision handled
Jurach any differently post-termination than it did the other employees in the
RIF. Thus, evidence related to Safety Vision’s provision of a recommendation
letter and a severance payment can just as easily be viewed as favorable to the
Company, and it does not create a conflict in substantial evidence on the
question of the true reason for the termination. Accordingly, the district court’s
grant of summary judgment on Jurach’s retaliation claim was proper.


                                CONCLUSION
      For the foregoing reasons, we AFFIRM.




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