     Case: 14-30190      Document: 00512736596         Page: 1    Date Filed: 08/18/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 14-30190                                FILED
                                  Summary Calendar                        August 18, 2014
                                                                           Lyle W. Cayce
                                                                                Clerk
JO-DEE L. ORTEGO,

                                                 Plaintiff - Appellant
v.

CONNIE STANDIGE; DEPARTMENT OF TRANSPORTATION AND
DEVELOPMENT, STATE OF LOUISIANA,

                                                 Defendants - Appellees




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:13-CV-836


Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Jo-Dee Ortego brought suit against the state governmental department
that employed her and one of its administrators for retaliation under the
Americans with Disabilities Act and for violating her First Amendment rights.
The district court granted summary judgment to the defendants, and Ortego
appealed. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 14-30190      Document: 00512736596      Page: 2    Date Filed: 08/18/2014



                                   No. 14-30190
                 FACTUAL & PROCEDURAL BACKGROUND
      Ortego is a former employee of the Louisiana Department of
Transportation and Development (“DOTD”) where she worked as a stockroom
clerk. Ortego several times complained about discrimination and harassment
by her supervisor, Shelia Tate.       Ortego eventually was terminated. 1 The
dispute between Ortego and Tate apparently began in October 2008 when
Ortego filed a request for a work schedule change as an accommodation for her
epilepsy. After her initial request, which had not stated it was to accommodate
a disability, was denied, Ortego’s second request was granted in November
2008. Ortego alleges that Tate retaliated for the requested accommodation by
encouraging DOTD employees to blame Ortego for their work schedule
changes, and that Tate increased Ortego’s workload and gave her extra duties.
      Ortego also alleged that Tate penalized her for requesting the
accommodation by launching an investigation into Ortego’s misuse of her work
computer. Ortego filed an EEOC charge on March 2, 2009, claiming Tate had
discriminated against her on the basis of her disability. In May 2009, and
again a year later, Ortego filed harassment complaints against Tate with the
human resources department at DOTD. Insufficient evidence was found to
show Tate was harassing Ortego. Ortego also alleged that Tate twice had
stalked her while both women were driving in their cars. Ortego complained
to DOTD about the alleged stalking and also filed police reports regarding the
two incidents. DOTD launched an investigation into the stalking complaints
and found the claims unsubstantiated.
      On September 9, 2011, DOTD district administrator Connie Standige
sent Ortego a pre-termination letter, informing her that she was being


      1Connie Standige was the district administrator of the district where Ortego was
employed and Tate’s immediate supervisor. It was Standige who terminated Ortego’s
employment.
                                          2
    Case: 14-30190         Document: 00512736596       Page: 3   Date Filed: 08/18/2014



                                      No. 14-30190
recommended for termination. The letter specified that Ortego had violated
DOTD        policy   No.    29,   titled   “employee    conduct,”    which    prohibits
insubordination and conduct unbecoming of a public employee. Among the
reasons given were Ortego’s insubordination, treatment of coworkers with lack
of respect or dignity, misusing DOTD computers, and making false claims of
harassment and stalking accusations against Tate. Standige also wrote that
Ortego had spread rumors in the workplace about Tate’s alleged stalking,
released confidential information knowing that an ongoing investigation was
being made into the stalking, and had failed to cooperate in the investigation
by failing to provide DOTD with the police reports. The letter concluded that
Ortego’s actions were inappropriate, unprofessional, and disruptive to the
working environment. Ortego was terminated on February 20, 2012.
      Ortego filed suit in state court in September 2012. The case was removed
to the United States District Court for the Eastern District of Louisiana in
April 2013. Ortego alleged violations of the ADA for failure to accommodate,
retaliation, and harassment.         She also alleged violations of the Louisiana
Employment Discrimination Law. A Section 1983 claim was also brought. The
district court granted summary judgment to the defendants on each of Ortego’s
claims. On appeal, Ortego challenges only the dismissal of her retaliation
claims, both under the ADA and the First Amendment.


                                     DISCUSSION
      This court reviews de novo the district court’s grant of summary
judgment, applying the same standard as the district court. Pratt v. City of
Houston, Texas, 247 F.3d 601, 605-06 (5th Cir. 2001). Summary judgment is
proper 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).
                                            3
    Case: 14-30190     Document: 00512736596      Page: 4   Date Filed: 08/18/2014



                                  No. 14-30190
      I.    Retaliation under the ADA
      “To establish a prima facie case of retaliation under the ADA or Title VII,
a plaintiff must show that (1) she participated in an activity protected under
the statute; (2) her employer took an adverse employment action against her;
and (3) a causal connection exists between the protected activity and the
adverse action.” Feist v. La., Dept. of Justice, Office of the Atty. Gen., 730 F.3d
450, 454 (5th Cir. 2013). If a prima facie case is made, the employer must
identify “a legitimate, non-retaliatory reason for its decision.” Id. If a reason
is stated, “the burden shifts back to the employee to demonstrate that the
employer’s reason is actually a pretext for retaliation.” Id.
      It is uncontested that Ortego engaged in protected activity by making a
request for an accommodation, filing internal complaints to DOTD alleging
harassment, and filing an EEOC charge. Ortego’s termination is an adverse
employment action. The district court concluded, though, that Ortego had not
demonstrated a causal connection between the protected activity and the
termination. The court also concluded that, assuming Ortego had stated a
prima facie case, DOTD had provided legitimate, non-retaliatory reasons for
its decision to terminate Ortego which Ortego had not shown were pretexts.
      The court cited the termination letter Ortego received from Standige as
providing legitimate, non-retaliatory reasons for Ortego’s termination. On
appeal, Ortego argues that the termination letter itself provides evidence that
DOTD fired Ortego for engaging in protected activity.           She relies on the
statements in the termination letter that Ortego had filed several false charges
against Tate as evidence Ortego was fired for engaging in protected activity.
We disagree.    The letter’s conclusions that Ortego’s claims were false is
supported by the evidence. Reliance in part on that ground for termination
does not equate to retaliation.     The district court did not err in granting
summary judgment for DOTD on Ortego’s claim for retaliation under the ADA.
                                        4
    Case: 14-30190     Document: 00512736596    Page: 5   Date Filed: 08/18/2014



                                 No. 14-30190
      II.     First Amendment Retaliation
      To proceed on her retaliation claim under the First Amendment, Ortego
“must show that (1) she suffered an adverse employment decision; (2) her
speech involved a matter of public concern; (3) her interest in commenting on
matters of public concern . . . outweigh[s] the Defendant’s interest in promoting
efficiency; and (4) her speech motivated the adverse employment decision.”
Beattie v. Madison Cnty. Sch. Dist., 254 F.3d 595, 601 (5th Cir. 2001) (quotation
marks omitted). If Ortego makes out a prima facie case, the burden shifts to
DOTD to show that it would have taken the same adverse employment action
regardless of the protected speech. Click v. Copeland, 970 F.2d 106, 113 (5th
Cir. 1992).
      Ortego contends she was fired in retaliation for filing the police reports
against Tate related to the alleged stalking incidents.      The district court
assumed without deciding that Ortego could establish a prima facie case of
First Amendment retaliation, concluding that DOTD had shown it would still
have terminated Ortego’s employment notwithstanding the police reports.
Again, the court referred to the reasons stated in the termination letter as
evidence that Ortego’s filing the police reports was not the motivating factor
behind her termination. Accordingly, Ortego’s First Amendment retaliation
claim fails. We find no error.
      AFFIRMED.




                                       5
