     Case: 19-20293   Document: 00515470642     Page: 1   Date Filed: 06/29/2020




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

                                 No. 19-20293
                                                                       Fifth Circuit

                                                                     FILED
                                                                 June 29, 2020

TANYA LYONS,                                                    Lyle W. Cayce
                                                                     Clerk
             Plaintiff - Appellant

v.

KATY INDEPENDENT SCHOOL DISTRICT,

             Defendant - Appellee




                Appeal from the United States District Court
                     for the Southern District of Texas


Before WIENER, ENGELHARDT, and OLDHAM, Circuit Judges.
WIENER, Circuit Judge:
      Plaintiff-Appellant Tanya Lyons challenges the summary judgment
awarded in favor of her previous employer, Defendant-Appellee Katy
Independent School District (“Katy ISD” or “the school district”), on her claims
under the Americans With Disabilities Act (“ADA”) for discrimination and
retaliation. Lyons contends that the district court erred in granting summary
judgment to Katy ISD on the grounds that she could not establish a prima facie
case of either disability-based discrimination or retaliation. For the reasons
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                                      No. 19-20293
explained below, we AFFIRM the district court’s grant of summary judgment
to the school district. 1
                              I. FACTS AND PROCEEDINGS
       Lyons was employed by Katy ISD at Mayde Creek Junior High School
from 2007 to 2018. From 2007 to 2013, she coached girls volleyball, track, and
basketball. In the 2013-2014 school year, she only coached girls volleyball and
track. In April 2014, Lyons scheduled a meeting with the school principal, Dr.
David Paz, to discuss his announced policy for the following school year that
all physical education teachers would be required to coach three sports. During
that meeting, she expressed her preference to coach two sports, particularly
not to coach basketball, which was the “middle” sport of the year and stretched
over the winter break. However, at no point in the meeting did she state that
she was unwilling to coach three sports or that she did not want to coach
basketball.
       During the summer of 2014, Lyons underwent lap band surgery. She
scheduled the surgery during the summer so that she would not have to miss
work. After undergoing the surgery, sometime around June 25, 2014, Lyons
left Paz a voicemail informing him that she could not attend the summer sports
camps because of the surgery and resulting restrictions imposed by her doctor.
       On July 15, 2014, the in-school suspension (“ISS”) teacher at Mayde
Creek Junior High unexpectedly resigned. On July 21, 2014, Paz left Lyons a
voicemail informing her of his decision to reassign her from teaching physical
education to serving as the ISS teacher. Paz also informed Lyons in the




       1 “An appellate court may affirm summary judgment on any ground supported by the
record, even if it is different from that relied on by the district court.” Bluebonnet Hotel
Ventures, L.L.C. v. Wells Fargo Bank, N.A., 754 F.3d 272, 276 (5th Cir. 2014) (internal
citations and quotations omitted).
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                                       No. 19-20293
voicemail that, as a result of the change, she would not be required to coach
basketball. 2
       Lyons responded to Paz in an email on July 28, 2014, expressing her
displeasure at the reassignment and her concerns that she was being
reassigned “because of health concerns and a procedure [she] had” during the
summer. Paz responded to Lyons that same day, clarifying that, even though
the reassignment might help with her recovery, he did not decide to reassign
her to the ISS position as a result of her procedure. 3
       On July 30, 2014, Lyons received an email from the assistant athletic
coordinator, Lauran DeForke, listing Lyons as a coach for girls basketball and
track for the 2014-2015 school year. Lyons sent DeForke a text message that
day stating, “Dr. Paz said I was out of Basketball, but you can take me out of
Volleyball too, that’s fine with me.” Lyons claims this text message was
sarcastic. On August 12, 2014, Lyons received an email from DeForke listing
her as coaching only track. The following year, DeForke switched Lyons from
coaching track to coaching tennis.
       On August 5, 2014, Lyons filed a level one grievance with the school
district, complaining that her reassignment to the ISS position constituted



       2  The transcription of the voicemail provides: “Tanya, this is David Paz. I want to talk
to you, there was a resignation today in ISS, and I know you’ve been having some health
concerns, and so, with that, and knowing you have ISS –um, you have ISS experience, I really
like the idea of having a coach in ISS, um, helping to actually make it an effective deterrent,
and then, with our classroom management. So what I’m going to do is, I’m going to be
changing your, um, changing your assignment to be the ISS teacher. Um, I’m also going to,
this opens up the, um, opens up that position in PE, and what I can do is find somebody for
basketball, so that you don’t have to do the basketball. I know that’s something you weren’t
looking forward to. So hopefully this will be good news as well, taking you out of that
basketball position. . . .”
        3 In the email, Paz stated: “I think you misunderstood my voicemail regarding our

health and procedures. To clarify, I had received your voicemail [regarding summer sports
camps] and was hoping you were doing well with your recovery. While this move could help
you with any recovery you might be going through, it was not a determining factor for moving
you to ISS.”
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                                       No. 19-20293
disability-based discrimination based on her “procedure.” She filed an EEOC
charge of discrimination and retaliation on November 3, 2014. After
exhausting her administrative remedies, Lyons filed suit against the school
district in May 2017, asserting claims of disability-based discrimination,
retaliation, and harassment. The district court granted summary judgment to
Katy ISD on all of Lyons’s claims, and she timely filed the instant appeal. 4 On
appeal, Lyons challenges the district court’s grant of summary judgment to
Katy ISD on her claims under the ADA of (1) disability-based discrimination
and (2) unlawful retaliation.
                               II. STANDARD OF REVIEW
       We review a summary judgment de novo, applying the same standards
used by the district court. 5 Summary judgment is proper when “there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” 6 “Where the nonmovant bears the burden of proof at trial,
the movant may merely point to an absence of evidence, thus shifting to the
non-movant the burden of demonstrating by competent summary judgment
proof that there is an issue of material fact warranting trial. Only when there
is sufficient evidence favoring the nonmoving party for a jury to return a
verdict for that party is a full trial on the merits warranted.” 7 But where the
movant bears the burden of proof at trial, the movant “must establish beyond
peradventure all of the essential elements of the claim or defense to warrant
judgment in his favor. Once the movant does so, the burden shifts to the




       4  Lyons does not appeal the district court’s grant of summary judgment to the school
district on her harassment claim.
        5 See, e.g., Ford Motor Co. v. Tex. Dep’t of Transp., 264 F.3d 493, 498 (5th Cir. 2001).
        6 FED. R. CIV. P. 56(a).
        7 In re La. Crawfish Producers, 852 F.3d 456, 462 (5th Cir. 2017) (internal quotations,

alterations, and citations omitted).
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nonmovant to establish an issue of fact that warrants trial.” 8 “All reasonable
inferences must be viewed in the light most favorable to the party opposing
summary judgment, and any doubt must be resolved in favor of the non-moving
party.” 9
                                       II. ANALYSIS
A. “REGARDED AS” DISABLED DISCRIMINATION CLAIM
       Under § 12112(a) of the ADA, an employer is generally prohibited from
“discriminat[ing] against a qualified individual on the basis of disability in
regard to job application procedures, the hiring, advancement, or discharge of
employees, employee compensation, job training, and other terms, conditions,
and privileges of employment.” 10 The ADA provides protections for individuals
who have a disability, had a disability, or are regarded as having a disability.11
The ADA also mandates that “regarded as” status “shall not apply to
impairments that are transitory and minor.” 12 The ADA defines a “transitory
impairment” as one “with an actual or expected duration of 6 months or less.” 13
       On appeal, Lyons abandons any claim that she was actually disabled and
instead maintains only that she was “regarded as” disabled. Before the district
court, Lyons clarified that her actual or perceived disability was related to her
“procedure” of lap band surgery and that her claimed disability was not related
to high blood pressure or obesity sometimes associated with that procedure.




       8  Dewan v. M-I, L.L.C., 858 F.3d 331, 334 (5th Cir. 2017) (internal citations and
quotations omitted).
       9 In re La. Crawfish Producers, 852 F.3d at 462.
       10 42 U.S.C. § 12112(a).
       11 See 42 U.S.C. § 12102(1) (defining disability as “(A) a physical or mental impairment

that substantially limits one or more major life activities of such individual; (B) a record of
such an impairment; or (C) being regarded as having such an impairment”).
       12 42 U.S.C. § 12102(3)(B).
       13 Id.

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                                        No. 19-20293
       The district court granted summary judgment to Katy ISD on Lyons’s
claim of “regarded as” disability-based discrimination on the ground that
Lyons “fail[ed] to satisfy the first element of a prima facie showing of disability-
based discrimination under the ADA as a matter of law.” The district court
concluded that, because Lyons’s impairment lasted less than two months, she
could not establish the first element of her prima facie case of disability-based
discrimination.
       Our Court has not yet decided whether a plaintiff in a “regarded as”
disabled-discrimination case must establish, as part of the prima facie case,
that any perceived impairment was not transitory nor minor or whether the
transitory and minor nature of the perceived impairment is an affirmative
defense that the employer must prove. Other circuit courts are divided on this
issue. 14 We need not wade into that discussion in this case because, either way,
there are no facts in dispute regarding the transitory and minor nature of
Lyons’s perceived impairment.
       Any impairment as a result of Lyons’s lap band surgery was objectively
transitory and minor by her own admission, because the actual or expected



       14  Compare Babb v. Maryville Anesthesiologists P.C., 942 F.3d 308, 319 (6th Cir. 2019)
(concluding that an employer may rebut a prima facie case of “regarded as” disability
discrimination with a showing that the impairment is transitory and minor); Nunies v. HIE
Holdings, Inc., 908 F.3d 428, 435 (9th Cir. 2018) (“The ‘transitory and minor’ exception is an
affirmative defense, and ‘[a]s such, the employer bears the burden of establishing the
defense.’”); Mancini v. City of Providence, 909 F.3d 32, 45 n.7 (1st Cir. 2018) (concluding that,
because the transitory and minor exception is an affirmative defense, the employer bears the
burden of establishing it); Silk v. Bd. of Trs., Moraine Valley Cmty. Coll., Dist. No. 524, 795
F.3d 698, 706 (7th Cir. 2015) (concluding that the employer “bears the burden of establishing
that the impairment was both transitory and minor”); Budhun v. Reading Hosp. & Med. Ctr.,
765 F.3d 245, 259 (3d Cir. 2014) (concluding the transitory and minor exception is a defense);
with Eshleman v. Patrick Indus., Inc., 961 F.3d 242, 246 n.25 (3d Cir. 2020) (“a regarded-as
plaintiff alleging a transitory and minor impairment has failed to state a legally sufficient
claim, even if the employer does not include a transitory and minor defense in its Answer”);
Adair v. City of Muskogee, 823 F.3d 1297, 1306 (10th Cir. 2016) (requiring a “regarded as”
plaintiff to show that the impairment “is neither transitory nor minor”).
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                                        No. 19-20293
duration of any impairment related to the lap band procedure was less than
six months. 15 Lyons declared that she scheduled the surgery during the
summer so that she would not have to miss work. In a text message to the
athletic coordinator and assistant athletic coordinator, Lyons stated that she
was “out of work for 2 weeks and with restrictions for 6-8 weeks.” She did not
point to evidence before the district court or in the record on appeal that the
actual or expected duration of any impairment related to the lap band
procedure was more than six months.
       Regardless of whether the “transitory and minor” nature of the
impairment was part of Lyons’s prima facie case or an affirmative defense to
her claim of “regarded as” disability discrimination, Katy ISD is entitled to
judgment of a matter of law on Lyons’s “regarded as” disability-based
discrimination claim. There are no facts in dispute regarding the transitory
and minor nature of the perceived impairment. We therefore affirm the district
court’s grant of summary judgment to the school district on Lyons’s claim that
she suffered discrimination on account of being “regarded as” disabled.
B. RETALIATION CLAIM
       The ADA prohibits an employer from “discriminat[ing] against any
individual because such individual has opposed any act or practice made
unlawful by [the ADA] or because such individual made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or


       15 See Michalesko v. Borough, 658 F. App’x 105, 107 (3d Cir. 2016) (unpublished)
(holding that the district court did not err in dismissing an employee’s “regarded as” disability
claim because “any perceived impairment related to [the employee’s] single acute stress
reaction would have been objectively transitory and minor”); Budhun, 765 F.3d at 259
(concluding that an employee’s broken finger was “objectively transitory and minor” and that,
as a result, the affirmative defense was evident from the face of the plaintiff’s complaint);
White v. Interstate Distrib. Co., 438 F. App’x 415, 420 (6th Cir. 2011) (unpublished)
(concluding that an employee with a leg fracture could not be regarded as disabled because
“there [was] no question that [his] impairments [were] transitory, as his doctor expected his
restrictions to be in effect for only a month or two”).
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hearing under [the ADA].” 16 When a plaintiff presents indirect evidence of
unlawful retaliation under the ADA, we apply the burden-shifting scheme
established in McDonnell Douglas Corp. v. Green. 17 To establish a prima facie
case of unlawful retaliation under the ADA, the plaintiff must show that: (1)
she engaged in an activity protected by the ADA, (2) she suffered an adverse
employment action, and (3) there is a causal connection between the protected
activity and the adverse action. 18 If the employee establishes a prima facie case
of retaliation, the employer must come forward with a legitimate, non-
discriminatory reason for its action. 19 If the employer meets its burden of
production, the employee must then demonstrate that the proffered reason is
a pretext for retaliation. 20 “Ultimately, the employee must show that ‘but for’
the protected activity, the adverse employment action would not have
occurred.” 21
       The district court granted summary judgment to Katy ISD on Lyons’s
claim of unlawful retaliation under the ADA on its determination that Lyons
“fail[ed] to present sufficient evidence to establish a ‘causal connection’
between her alleged protected activity and [the school district’s] alleged
adverse employment action.” The district court reached this conclusion because
the only evidence Lyons presented regarding the causal connection was the
temporal proximity of her protected activities and the adverse employment
actions. Because the district court concluded that Lyons failed to establish the


       16 42 U.S.C. § 12203(a).
       17 See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Nall v. BNSF Ry. Co.,
917 F.3d 335, 349 (5th Cir. 2019). Because we employ the burden-shifting scheme applicable
to claims under Title VII, we cite to cases involving Title VII claims below. See Feist v. La.,
Dep’t of Justice, Office of the Attorney Gen., 730 F.3d 450, 454 (5th Cir. 2013) (citing to both
Title VII and ADA cases when discussing a claim of retaliation under the ADA).
       18 Nall, 917 F.3d at 348.
       19 Id. at 349.
       20 Id.
       21 Id. (quoting Seaman v. CSPH, Inc., 179 F.3d 297, 301 (5th Cir. 1999).

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                                       No. 19-20293
third element of her prima facie case of retaliation, that court did not analyze
whether Lyons established either of the first two elements of her prima facie
case and did not engage in the burden-shifting analysis.
       We conclude that the district court erred in its determination that Lyons
failed to establish a prima facie case of retaliation because she failed to present
sufficient evidence of a causal connection. We nevertheless affirm the district
court’s grant of summary judgment to Katy ISD on Lyons’s retaliation claim.
After conducting the burden-shifting analysis, we conclude that Lyons has
failed to meet her summary judgment burden of pointing to evidence
demonstrating that the legitimate, non-discriminatory reasons proffered by
the school district for its actions were pretextual.
       Lyons asserts that she engaged in protected activity on August 5, 2014
when she filed a level one grievance regarding her change in teaching position.
She also contends that she engaged in protected activity on November 3, 2014
by filing an EEOC Charge. These activities are protected under the ADA,
which provides protection for individuals who oppose any practice of
discrimination or make a charge of discrimination. 22 Lyons has established the
first element of her prima facie case. She identifies two or three 23 adverse
employment actions which she suffered in retaliation for her engagement in
protected activity: (1) being removed from coaching volleyball in July 2014, (2)
being removed from coaching basketball on August 12, 2014, and (3) being
switched from coaching track to coaching tennis in August 2015. The district
court did not determine whether these actions constituted adverse employment



       22 See 42 U.S.C. §12203 (prohibiting discrimination “against any individual because
such individual has opposed any act or practice made unlawful by [the ADA] or because such
individual made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under [the ADA]”).
       23 Lyons does not clearly delineate the actions that she contends constitute retaliatory

adverse employment actions.
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                                        No. 19-20293
actions. Assuming, without concluding, that they did, Katy ISD is nonetheless
entitled to summary judgment.
       To demonstrate the third element of a prima facie case of retaliation—a
causal connection between the protected activity and the adverse action—a
plaintiff must demonstrate that the employer’s decision “was based in part on
knowledge of the employee’s protected activity.” 24 “Close timing between an
employee’s protected activity and an adverse action against him may provide
the ‘causal connection’ required to make out a prima facie case of retaliation.” 25
The Supreme Court has observed that “[t]he cases that accept mere temporal
proximity between an employer’s knowledge of protected activity and an
adverse employment action as sufficient evidence of causality to establish a
prima facie case [of retaliation] uniformly hold that the temporal proximity
must be ‘very close.’” 26 We have ruled, for example, that a six-and-a-half-week
timeframe is sufficiently close, 27 but that a five month lapse is not close
enough, without other evidence of retaliation, to establish the “causal
connection” element of a prima facie case of retaliation. 28



       24  Medina v. Ramsey Steel Co., 238 F.3d 674, 684 (5th Cir. 2001) (quoting Sherrod v.
Am. Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998)) (internal quotation omitted).
        25 Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997) (emphasis

added).
        26 Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268 (2001); see also Strong v. Univ.

Healthcare Sys., L.L.C., 482 F.3d 802, 808 (5th Cir. 2007) (commenting on Breeden and
observing that, “temporal proximity alone, when very close, can in some instances establish
a prima facie case of retaliation” but also rejecting the “notion that temporal proximity
standing alone can be sufficient proof of but for causation” once the burden shifts back to the
employee under the McDonnell Douglass framework).
        27 Porter v. Houma Terrebonne Hous. Auth. Bd. of Comm’rs, 810 F.3d 940, 949 (5th

Cir. 2015); see also Wilson v. Noble Drilling Servs., Inc., 405 F. App’x 909, 913 (5th Cir. 2010)
(unpublished) (concluding that one month between was sufficiently close); Evans v. Houston,
246 F.3d 344, 354 (5th Cir. 2001) (concluding that a five-day lapse was sufficient to satisfy
the third element of a prima facie case of retaliation).
        28 Raggs v. Miss. Power & Light Co., 278 F.3d 463, 472 (5th Cir. 2002) (noting that a

district court in this circuit has found that “a time lapse of up to four months has been found
sufficient”).
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                                       No. 19-20293
       Lyons claims that she received an email on July 30, 2014 stating that
she would be coaching basketball and track for the 2014-2015 school year. On
August 5, 2014, she filed a level one grievance with the school district
regarding her transfer to the ISS position. She claims that she received an
email on August 12, 2014, one week after she filed her level one grievance,
stating that she would only be coaching track and thereby removing her from
coaching basketball. 29 The one-week temporal proximity between filing the
level one grievance and being removed from coaching basketball is sufficient
evidence of causality to establish a prima facie case of retaliation arising out
of those actions. The district court erred in concluding otherwise.
       However, more than nine months elapsed between the time Lyons filed
her EEOC charge in November of 2014 and was switched from coaching track
to coaching tennis in August 2015. This period of time, alone, is insufficient
evidence of causality to establish a prima facie case of retaliation. Because
Lyons fails to provide more than the nine-month temporal proximity, she fails
to establish a prima facie case of retaliation arising out of being switched from
coaching track to coaching tennis. Further, Lyons complains of being removed
from coaching volleyball. This action took place in July 2014, before she
engaged in protected activity, and cannot serve as the basis for a retaliation
claim.
       Once Lyons established her prima facie case of retaliation arising out of
her filing the level one grievance and her removal from coaching basketball,




       29 It is not clear from the record who made the decision that Lyons would not coach
basketball or when that decision was made. In a text message Lyons sent to DeForke on July
30, 2014, she stated, “Dr. Paz said I was out of Basketball.” In the July 21, 2014 voicemail
Dr. Paz left Lyons, he stated “I can find somebody for basketball, so that you don’t have to do
the basketball. I know that’s something you weren’t looking forward to.” Construing the
evidence in the light most favorable to Lyons, we assume arguendo that the decision did not
occur until August 12.
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the burden shifted to Katy ISD to put forth a legitimate, non-discriminatory
reason for its actions. 30 “This burden is satisfied by introducing evidence
which, if true, would permit the trier-of-fact to conclude that the termination
was nondiscriminatory.” 31 Katy ISD proffered that Lyons was removed from
coaching basketball because it was the school district’s understanding that she
did not like coaching basketball and did not want to do so. 32 In fact, Lyons
stated in her deposition that DeForke “thought that I didn’t like basketball and
didn’t want to coach basketball.” As we noted earlier, the school principal
stated that it was his understanding from what Lyons had told him that “she
really preferred coaching 2 sports, and in particular not having to coach
basketball, which is the ‘middle’ sport of the year and stretches over the winter
break.
       The burden then shifted back to Lyons to demonstrate that the school
district’s stated reason is a pretext for retaliation. 33 Lyons had to offer some
evidence from which a jury could infer that retaliation was the real motive for
removing her from coaching basketball. Lyons failed to offer anything more to
substantiate her claim of retaliation than the facts of her protected action on
August 5, 2014 and her removal from coaching basketball one week later. This
“very close” temporal proximity is sufficient to establish the “causal
connection” element of her prima facie case, but it is insufficient to
demonstrate pretext. 34 Lyons fails to meet her burden on summary judgment



       30 See Nall, 917 F.3d at 349.
       31 Medina, 238 F.3d 674.
       32 There is some ambiguity regarding who made the decision that Lyons would not

coach basketball. Regardless of whether DeForke or Paz made the decision, both testified
that they thought Lyons would prefer not to coach basketball.
       33 See Nall, 917 F.3d at 349.
       34 See Strong, 482 F.3d at 808 (highlighting that, although temporal proximity alone,

when very close, can establish a prima facie case of retaliation, it cannot serve as sufficient
proof of pretext).
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to demonstrate that there is a dispute of fact whether the school district’s
stated reasons for its actions were pretextual.
      Although the district court erred in its reasoning, it was correct in its
conclusion that Katy ISD is entitled to summary judgment on Lyons’s claim of
unlawful retaliation under the ADA. We affirm the district court’s grant of
summary judgment to Katy ISD on Lyons’s retaliation claim because she has
failed to demonstrate that there is a dispute of fact as to whether the school
district’s stated reasons for removing her from coaching basketball were
pretextual.
                              IV. CONCLUSION
      The judgment of the district court is AFFIRMED.




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