     Case: 15-50060      Document: 00513154908         Page: 1    Date Filed: 08/14/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT



                                    No. 15-50060
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                  Summary Calendar                              FILED
                                                                          August 14, 2015
                                                                           Lyle W. Cayce
JEFFREY R. GORDON,                                                              Clerk

                                                 Plaintiff-Appellant,
v.

ACOSTA SALES AND MARKETING, INC.,

                                                 Defendant-Appellee.


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:13-CV-662


Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Plaintiff-Appellant Jeffrey R. Gordon (“Gordon”) brought this suit
against Defendant-Appellee Acosta Sales and Marketing, Inc. (“Acosta”)
claiming that Acosta discriminated against him in violation of the Americans
with Disabilities Act (“ADA”). Upon reviewing Acosta’s motion for summary
judgment, the district court granted the motion and entered final judgment in
favor of Acosta. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                      I.
      Acosta is a sales and marketing company that helps various food and
consumer product companies with their stock management, sales, and
promotions at large retailers like grocery and drug stores. Acosta hired Gordon
as a part-time retail coverage merchandiser (an “RCM”) in September 2012.
Gordon’s responsibilities as an RCM included tracking product sales,
informing store managers about their inventory, and helping promote ongoing
or upcoming deals for his assigned products. Gordon set up his own schedule,
usually travelling between two to three stores per day. The average travel
time between stores was fifteen to twenty minutes.
      Gordon has a medical condition called edema, which causes swelling of
the extremities.   As treatment for this condition, Gordon takes a diuretic
medication, which causes frequent urination for the six to eight hours after he
ingests it. In October or November 2012, Gordon informed his supervisor,
Rudy Ramirez, that he had edema and that he would be seeking alternate
employment within Acosta. Ramirez supported his decision. In November
2012, Gordon applied for two open administrative positions but was turned
down for both of them.
      In late 2012, Kraft Foods (an Acosta client) requested that Acosta
provide RCMs who would work to promote Kraft products exclusively as part
of a new staffing model. To accommodate this request, Acosta hired a new
RCM who took on the Kraft responsibilities, which Gordon and two other
RCMs previously held. Acosta notified the whole team of the change in an
email on January 7, 2013. Gordon objected to the impact this decision had on
his responsibilities. In order to maintain Gordon’s hours, Ramirez suggested
expanding the number of stores assigned to Gordon. Gordon opposed this


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option because of the wear and tear additional travel would have on his vehicle.
On January 8, 2013, Gordon emailed Ramirez and requested that Acosta
reduce his hours to 24-per week (from 30 hours) to enable his search for
alternative employment. The email did not mention Gordon’s disability or that
Gordon was having any difficulty performing his duties. On January 9, 2013,
in response to the e-mail, Ramirez confronted Gordon while Gordon was
working on-site at a grocery store and yelled at Gordon, using an expletive.
Ramirez never mentioned Gordon’s disability during their argument.
      Gordon complained about Ramirez’s conduct in an email to Ramirez’s
supervisor, David Osgood, and a human resources (“HR”) representative, Judy
Conord.    Gordon mentioned filing an Equal Employment Opportunity
Commission (“EEOC”) charge for verbal assault and harassment but did not
discuss any protected characteristic such as Gordon’s disability. In a follow-up
email, Gordon requested a “reasonable accommodation” of removing Gordon
from the supervision of Ramirez, preferably to an administrative position. At
this time, he made no mention of his disability.
      Although Acosta did not provide a transfer, it did investigate and follow-
up on the altercation, ultimately disciplining Ramirez.       However, Gordon
continued to complain that he was afraid that Ramirez would retaliate against
him for reporting the incident. The only evidence that Gordon offered in
support of his assertion that Ramirez engaged in further retaliatory behavior
was an email concerning the late submission of his schedule. Gordon testified
that the email unfairly singled him out and was accusatory in tone. However,
during Gordon’s deposition, Acosta’s attorney presented Gordon with copies of
an identical email that Ramirez sent to several other RCMs concerning the late
submissions of their schedules.


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     On February 5, 2013, Osgood and Harvey Shaner, another Acosta
employee, met with Gordon to discuss his continued concerns of retaliation by
Ramirez. For the first time, Gordon mentioned his disability in conjunction
with his request for a transfer. Towards the end of the meeting, Shaner made
a comment suggesting that Gordon lied about his disability in order to secure
the RCM position. Taking offense, Gordon terminated the meeting. Gordon
reported his complaint to Conord. Shaner had no further contact with Gordon.
     On February 12, 2013, Gordon informed Conord that he would be
changing the scheduling of his medication in order to better manage his edema
and that doing so would cause him to urinate with greater frequency. In
conjunction with his change in medicine, Gordon, again, requested Acosta
“accommodate” him by transferring him to an administrative position out of
Ramirez’s supervision.    In response, Conord requested a doctor’s note,
certifying his condition. On March 22, 2013, Gordon emailed Conord a copy of
a letter from his doctor, Dr. Quiroz, stating Gordon “requires a position that
puts him in close proximity to the bathroom.” Dr. Quiroz suggested that Acosta
take this fact into consideration when determining whether to provide Gordon
with a transfer but did not indicate that the transfer was necessary as an
accommodation for Gordon’s condition.
      Acosta responded to the accommodation request on March 27, 2013,
stating that it could accommodate Gordon in his current position as an RCM,
since he had unlimited and free access to bathrooms at all times. Acosta
further assured Gordon that he would not be penalized in any way for taking
frequent breaks and that his supervisors were made aware of his condition.
Gordon found the email to be retaliatory in nature, but instead of calling or
emailing Conord to discuss the accommodation, he submitted his resignation


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at 5:30 p.m. that same day.
      Gordon thereafter filed suit in the United States District Court for the
Western District of Texas, asserting the following four claims against Acosta:
1) failure to provide reasonable accommodation; 2) retaliation; 3) hostile work
environment; and 4) constructive discharge. Following discovery, Acosta filed
a motion for summary judgment, which the district court granted in its favor.
Gordon appealed.
                                       III.
      We review a district court's “grant of summary judgment de novo,
applying the same standards as the district court.” Ibarra v. United Parcel
Serv., 695 F.3d 354, 355 (5th Cir. 2012). Summary judgment is appropriate
where the movant demonstrates “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). A genuine dispute of material fact exists “if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
                                       IV.
      Based on a careful review of the record, the parties’ respective briefs, and
the district court’s opinion, we conclude that Acosta’s motion for summary
judgment was properly granted. We address Gordon’s arguments in turn.
                   A. Reasonable Accommodation Claim
      In order to establish a prima facie case in a failure-to-accommodate
claim, a plaintiff must prove the following: “(1) the plaintiff is a qualified
individual with a disability; (2) the disability and its consequential limitations
were known by the covered employer; and (3) the employer failed to make
reasonable accommodations for such known limitations.” Feist v. Louisiana,


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Dep’t of Justice, Office of the Att’y Gen., 730 F.3d 450, 452 (5th Cir. 2013)
(internal quotation marks omitted). The heart of the parties’ disagreement is
over     the   third    element,   viz.,   whether   Acosta    provided    reasonable
accommodation for Gordon’s disability. Gordon argues that Acosta’s
“accommodation” was not reasonable and that the alternative he requested,
being transferred to the vacant administrative position in the local San
Antonio office, would have been appropriate. In response, Acosta argues that
the accommodation it offered was reasonable and that it is not liable, because
Gordon ended the interactive process. See Loulseged v. Akzo Nobel Inc., 178
F.3d 731, 736 (5th Cir. 1999) (“[A]n employer cannot be found to have violated
the ADA when responsibility for the breakdown of the ‘informal, interactive
process’ is traceable to the employee and not the employer.”) (citing Beck v.
University of Wisconsin Bd. Of Regents, 75 F.3d 1130, 1135 (7th Cir.1996)
and Templeton v. Neodata Services, Inc., 162 F.3d 617 (10th Cir.1998)).
        Given the record before us, we need not address whether Acosta provided
a reasonable accommodation, because we conclude that Gordon’s unilateral
withdrawal from the interactive process is fatal to his claim. See Griffin v.
United Parcel Serv., Inc., 661 F.3d 216, 225 (5th Cir. 2011); Loulseged, 178 F.3d
at 735 (“What occurred here was not a refusal of [the employer] to reasonably
accommodate [the employee’s] concerns, but a breakdown in the interactive
process designed to create those accommodations.”). Following an employee’s
request for reasonable accommodation, the ADA’s regulations state that “it
may be necessary for [the employer] to initiate an informal, interactive process
with the qualified individual with a disability in need of the accommodation,”
so that the parties may determine the appropriate remedy.                 29 C.F.R. §
1630.2(o)(3) (2015). Because both parties share the responsibility of engaging


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in this process, see 29 C.F.R. pt. 1630, App., §1630.9 (2015), the employer is not
liable when the employee is at fault for the breakdown in communication.
Loulseged, 178 F.3d at 736.     Here, Gordon ended the interactive process by
resigning within hours (5:30 p.m. the same day) of Acosta’s accommodation
offer rather than responding to Conord’s email or contacting another individual
at Acosta and explaining why an alternative accommodation was necessary.
Given these particular facts, we conclude that no reasonable jury could find
that Gordon was not responsible for the breakdown in the informal, interactive
process. Accordingly, summary judgment was properly granted to Acosta on
Gordon’s reasonable accommodation claim.
                       B. Hostile Work Environment
      Gordon also contends that he was subjected to a hostile work
environment because of his disability. As evidence of this, Gordon points to
the altercation with Ramirez in the store, an email that Ramirez sent, and a
general lack of support and training provided by Ramirez. To ultimately
prevail on this claim, Gordon must show, inter alia, that the harassment was
“sufficiently pervasive or severe to alter the conditions of employment and
create an abusive working environment.” McConathy v. Dr. Pepper/Seven Up
Corp., 131 F.3d 558, 563 (5th Cir. 1998) (quoting Farpella-Crosby v. Horizon
Health Care, 97 F.3d 803, 806 (5th Cir. 1996)). Gordon’s claim fails, because
the summary-judgment evidence does not support a finding that the alleged
harassment was pervasive or severe enough to alter the conditions of his
employment. See McConathy, 131 F.3d at 564 (“It is a simple fact that in a
workplace, some workers will not get along with one another, and this Court
will not elevate a few harsh words or ‘cold-shouldering’ to the level of an
actionable offense.”). Further, even assuming arguendo the altercation with


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Ramirez was sufficiently severe, Gordon’s claim nevertheless fails because
Acosta took quick and decisive action to remedy the problem when it
investigated and disciplined Ramirez, after which no further harassment or
incidents occurred. See Indest v. Freeman Decorating, Inc. 164 F.3d 258, 266
(5th Cir. 1999) (holding that the employer’s swift response to the employee’s
assertion of sexual harassment forestalled the creation of a hostile work
environment, and, thereby, relieved the employer of liability).
                                C. Retaliation
      Gordon argues that he engaged in a protected activity by threatening to
take his complaints about the altercation with Ramirez to the EEOC, which
resulted in an “adverse employment action,” i.e., Acosta’s refusal of “reasonable
accommodation.” As set forth in the ADA, “protected activity includes opposing
employment actions or practices that are unlawful under the ADA.” 2
AMERICANS WITH DISABILITIES: PRACTICE & COMPLIANCE MANUAL § 7:398
(2015). Courts have recognized this includes filing charges with the EEOC
alleging “discrimination on the basis of perceived disability.” See id.; Sherrod
v. Am. Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998). However, when
employees make complaints about harassment without connecting the
employment practices to their disabilities, these complaints do not constitute
protected activity. See Harris-Childs v. Medco Health Solutions, Inc., 169 Fed.
Appx. 913, 916 (5th Cir. 2006) (finding that the Appellant had not engaged in
a   protected    activity,   even    though     she    complained    of    unfair
treatment/harassment, because she did not demonstrate that she “put the
employer on notice that her complaint was based on racial or sexual
discrimination”). Thus, because Gordon’s complaint about Ramirez was a
personal   grievance   rather   than   a   complaint    resulting   from   illegal


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discrimination, his claim fails. See Alack v. Beau Rivage Resorts, Inc., 286 F.
Supp. 2d 771, 775 (S.D. Miss. 2003) (“Although express complaints to
supervisors about perceived discriminatory practices constitute protected
activity,[] the wide range of protected activity clearly does not include those
situations where the opposition relates not to unlawful employment practices
but to a personal grievance.”) (quoting Garcia-Paz v. Swift Textiles, Inc., 873
F. Supp. 547, 560 (D. Kan. 1995) (internal quotations omitted)).
                         D. Constructive Discharge
      Evidence of “[c]onstructive discharge requires a greater degree of
harassment than required by a hostile environment claim.” Lauderdale v.
Texas Dep’t of Criminal Justice, Institutional Div., 512 F.3d 157, 167 (5th Cir.
2007) (quoting Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir. 2001)).
To ultimately prevail, Gordon has the burden of showing that his working
conditions were “so intolerable that a reasonable employee in [his] position
would [have felt] compelled to resign.” Hockman v. Westward Commc’ns, LLC,
407 F.3d 317, 331 (5th Cir. 2004). As the district court correctly observed, the
summary-judgment evidence does not support a finding that Gordon endured
any of the factors cited in Brown v. Bunge Corp, 207 F.3d 776, 782 (5th Cir.
2000). And, although Gordon claims that he had to make a “Hobson’s choice”
choosing to resign over continuing to work in unworkable conditions, he
actually had a third choice: continuing to engage in the interactive process with
Acosta. Thus, even viewing the facts in the light most favorable to Gordon as
we must at this stage of proceedings, we nevertheless conclude that the
summary-judgment evidence would not support a reasonable jury in finding
that Gordon was constructively discharged.




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                                     V.
     For all of the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment in favor of Acosta.




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