     Case: 18-11492      Document: 00515001621         Page: 1       Date Filed: 06/19/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 18-11492
                                                                 United States Court of Appeals
                                                                          Fifth Circuit

                                  Summary Calendar                      FILED
                                                                    June 19, 2019
                                                                   Lyle W. Cayce
DANIELLE CLARK,                                                         Clerk

              Plaintiff - Appellant

v.

CHARTER COMMUNICATIONS, L.L.C.,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:17-CV-1085


Before HIGGINBOTHAM, ELROD, and DUNCAN Circuit Judges.
PER CURIAM:*
       Danielle Clark sues her employer Charter Communications, alleging
disability discrimination and harassment, failure to provide reasonable
accommodations and to engage in the iterative process regarding such
accommodations, and retaliation in violation of the Americans with
Disabilities Act and the Texas Commission on Human Rights Act. Charter




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-11492
moved for summary judgment on all of Clark’s claims. We AFFIRM the district
court’s decision to grant the motion.

                                            I.
      Charter Communications LLC is a telecommunications service provider
with over six million customers across nearly three dozen states. Charter’s
Regional Operations Center in Dallas serves as the “nerve center” of its
network in North Texas. Here, Charter employs approximately fifty specialists
to monitor computer displays tracking the network’s status in real time. When
the system displays an outage, a specialist will immediately dispatch a
technician to the location. Specialists then monitor the progress of the
technician’s restoration efforts; if the work exceeds certain time thresholds, the
specialist must notify supervisors. Specialists also monitor the Center’s email
account, responding to customer problems or questions, as well as the Center’s
telephone line, to communicate with technicians in the field. Specialists rotate
between these tasks, often handling each responsibility alone during their
shifts.
      Danielle Clark was employed as a specialist in the Dallas Operations
Center beginning in Fall of 2015. 1 After Clark fell asleep during a training
session, Charter gave her a week off to seek medical testing, during which she
was diagnosed with narcolepsy, a neurological condition that caused her to
experience the uncontrolled sudden onset of sleep. Clark had problems staying
awake during her shifts. Clark concedes she fell asleep at work, including while
she was surveilling the Charter network for outages and during work
coordinating technicians’ repairs of the network. Clark also experienced


      1 Clark was originally hired as a customer service representative by Time Warner
Cable in 2012. In November 2015, her position changed to operations center specialist, and
in May 2016 ownership changed to Charter Communications, which became Clark’s
employer.
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                                  No. 18-11492
episodes in which she fell asleep, woke up, and did not realize that she had
been asleep. Co-workers found Clark sleeping while she as supposed to be
monitoring the network, as well as in the middle of phone calls with
technicians in the field.
        Clark’s supervisors worked with her to mitigate the effects of narcolepsy
on her work. For example, supervisors permitted Clark to take an additional
break between shifts to nap. In December 2015, Clark’s supervisors excused
her from a randomly assigned night shift on the grounds that narcolepsy made
her unable to work at night. Supervisors also agreed Clark would take two
days every month as leave to attend doctor’s appointments and otherwise
address her narcolepsy. Notwithstanding these accommodations, Clark
continued to fall asleep during her shifts.
        Following her exemption from night-shift duties, some co-workers
stopped engaging with Clark, others made negative comments about her
breaks, and spoke about wanting Clark to be fired. In February 2016, Clark
emailed her supervisors about animosity from co-workers regarding her
narcolepsy, but she alleges they failed to respond sufficiently. Clark’s
supervisors provided her feedback and “coaching” less often than to other
coworkers. Workplace stress exacerbated the effects of Clark’s narcolepsy.
        In October 2016, one of Clark’s supervisors informed her that she had
nearly exhausted her entitlement to FMLA leave, but that Charter would allow
her to take an unpaid leave of absence to address her narcolepsy. Clark was
placed on leave on November 6, 2016, with a return date of December 2, 2016.
During this period, Charter agreed upon several extensions of Clark’s leave,
ultimately until March 2017. When Clark requested a 15-minute break every
two hours upon her return, Charter agreed to this accommodation.
        On January 23, 2017, Clark filed charges of discrimination with the
Equal     Employment     Opportunity    Commission     and     the   Texas    Work
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                                  No. 18-11492
Commission. On March 9, 2017, she received notice of her right to sue from the
EEOC. On April 21, 2017, Clark sued Charter in the district court, alleging
disability discrimination, harassment, failure to accommodate, failure to
engage in the interactive process, and retaliation in violation of the Americans
with Disabilities Act and the Texas Commission on Human Rights Act. Charter
moved for summary judgment, and the district court granted the motion. This
appeal followed.

                                       II.
      A party is due summary judgment when, drawing all reasonable
inferences in favor of the nonmovant, the record evidence indicates no genuine
issue of material fact and that the movant is entitled to judgment as a matter
of law. 2 We review the district court’s grant of summary judgment de novo. 3
                                       A.
      Under the Americans with Disabilities Act, an employer may not
discriminate against a qualified individual on the basis of disability. 4 A
plaintiff may “present direct evidence that she was discriminated against
because of her disability.” 5 Alternatively, in the absence of direct evidence of
discrimination, the plaintiff “must establish: (1) [she] has a disability, or was
regarded as disabled; (2) was qualified for the job; and (3) was subject to an
adverse employment decision on account of [her] disability.” 6 In connection
with the second element, to establish that she is a “qualified individual,” 7 the
plaintiff must show she could “perform the essential functions of the job in


      2 FED. R. CIV. P. 56(a).
      3 Hagen v. Aetna Ins. Co., 808 F.3d 1022, 1026 (5th Cir. 2015).
      4 Caldwell v. KHOU-TV, 850 F.3d 237, 241 (5th Cir. 2017) (citing 42 U.S.C. §

12112(a)).
      5 Id.
      6 Id.
      7 Rodriguez v. Eli Lilly & Co., 820 F.3d 759, 765 (5th Cir. 2016).

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                                      No. 18-11492
spite of [her] disability,” or that she could do so with an identified “reasonable
accommodation of [her] disability.” 8 A plaintiff must also be a qualified
individual to bring a claim against an employer for failure to make reasonable
accommodation and engage in the iterative process to determine a reasonable
accommodation. 9 A disability discrimination claim under the Texas statute
maps onto federal disability discrimination law, and courts “appl[y] the legal
standards for the ADA” to such claims. 10
       The district court held that Clark failed to establish that “she was
otherwise qualified for the position and . . . duties” of an specialist at Charter’s
Regional Operations Center. In her deposition, Clark conceded that her
physicians advised that she would continue to fall asleep at unpredictable
times during her shift, and would require unplanned 10-minute naps at an
unknown frequency throughout the workday. Clark argues that staying awake
was not an essential function of her role, that “speedy and accurate
performance . . . are admirable and desirable qualities” in a specialist, but not
essential ones. There is no record support for this contention. Clark fails to
point us to any genuine factual dispute regarding whether a specialist could
fulfill her tasks when she might sleep through a time-sensitive network alert
or an urgent call from a technician addressing an outage. The district court did
not err in finding that Clark was not a qualified individual, and therefore that



       8  Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1093 (5th Cir. 1996).
       9  Credeur v. Louisiana, 860 F.3d 785, 792 (5th Cir. 2017).
        10 Gober v. Frankel Family Trust, 537 F. App’x 518, 520 (5th Cir. 2013) (unpublished);

NME Hosps., Inc. v. Rennels, 994 S.W.2d 142, 144 (Tex. 1999) (“The Texas Commission on
Human Rights Act is modeled after federal civil rights law. The Act purports to correlate
state law with federal law in the area of discrimination in employment. Thus, in light of the
Legislature's express purpose, we look to analogous federal precedent for guidance when
interpreting the Texas Act.” (internal citations and quotation marks omitted)); Barricks v.
Minyard Food Stores, Inc., 170 F.3d 184 (5th Cir. 1999) (unpublished) (“To maintain a cause
of action under TCHRA, a plaintiff must establish essentially the same elements of proof as
if proceedings under the ADA.”).
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                                       No. 18-11492
Charter was due summary judgment on the disability-discrimination and
failure-to-accommodate claims.
                                              B.
       To establish a prima facie claim of retaliation under the ADA, Clark was
required to show that (1) she participated in an activity protected by the ADA;
(2) she suffered an adverse employment action; and (3) a causal connection
exists between the protective activity and the adverse action. 11 To survive
summary judgment, the plaintiff must show a dispute based in substantial
evidence regarding whether the employer would not have taken the action but
for the protected activity. 12
       Clark raises two potential adverse employment actions. First, in her
initial brief she argues that she was “forc[ed]” to take unpaid leave during
which she lost insurance benefits and access to health care. Although she
concedes that “involuntary leave in lieu of attendance discipline is not an
adverse job action,” she asserts that at the time she was forced on leave she
“had several weeks of FMLA leave remaining.” As Charter points out, however,
here Clark misrepresents the record. Clark cites a September 12, 2016 letter
stating that Clark had two weeks remaining in her FMLA leave entitlement.
But Clark’s unpaid leave commenced almost two months later, on November
6, 2017, at which point Clark had exhausted her FMLA leave. In other words,
there is no genuine dispute that Clark’s unpaid leave was made after she had
exhausted her paid leave and would otherwise have faced attendance
discipline. As such, by her own admission, it was not an adverse employment
action. 13




       11 Feist v. Louisiana, 730 F.3d 450, 454 (5th Cir. 2013).
       12 Id. (quoting Long v. Eastfield College, 88 F.3d 300, 308 (5th Cir. 1996)).
       13 Barricks, 170 F.3d 184 (5th Cir. 1999).

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                                       No. 18-11492
      Second, Clark describes a change in her supervisor Michelle Ochoa’s
“demeanor and attitude” after Clark returned from “forced medical leave,”
putting “Clark’s job performance in substantial jeopardy.” Clark cites to a
passage from her deposition in which she recalls that Ochoa “would not
respond to text messages like she always had” and stopped providing positive
reviews of Clark’s work following Clark’s complaints to human resources.
Clark’s argument here appear to attribute Ochoa’s change in demeanor and
attitude to Clark’s availing herself of disability associated leave; but, if so, her
argument is contradicted by the record: the leave in question postdates the
alleged change in Ochoa’s attitude. Assuming arguendo that Clark attributes
Ochoa’s change to Clark’s complaints, the claim still cannot survive summary
judgment because the one sentence she provides fails to support her assertion
that the decreased frequency of text messages and positive reviews is
attributable to retaliatory intent. The district court did not err in finding Clark
failed to create a genuine issue of material fact as to the elements of her
retaliation claim.
                                              C.
      We have recognized a cause of action for disability-based harassment
under the ADA, modeling it after a similar claim under Title VII. 14 To succeed
on such a claim, the plaintiff must demonstrate (1) that she belongs to a
protected group; (2) that she was subjected to unwelcome harassment; (3) that
the harassment complained of was based on her disability or disabilities; (4)
that the harassment complained of affected a term, condition, or privilege of
employment; and (5) that the employer knew or should have known of the
harassment and failed to take prompt, remedial action. 15 “The legal standard



      14   Gowesky v. Singing River Hosp. Sys., 321 F.3d 503, 509 (5th Cir. 2003).
      15   Id.
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for workplace harassment in this circuit is . . . high. For workplace abuse to
rise to the level of an actionable offense the disability-based harassment must
be sufficiently pervasive or severe to alter the conditions of employment and
create an abusive working environment.” 16 Conduct that is “insensitive and
rude,” including “hard words or cold-shouldering,” does not rise to the level of
actionable harassment. 17
      Clark’s harassment claim is based in the conduct of her supervisor, Rob
Fox, a conversation with her supervisor Michelle Ochoa, and interactions with
a number of co-workers. Clark describes in an affidavit that, upon learning
that Clark had sought an exemption from the night shift, Fox raised his voice
and became visibly upset, expressing displeasure that Clark had applied
knowing that night shifts were required in her position. Clark characterizes
Fox’s decision to grant her a period of leave after she had exhausted her FMLA
leave entitlement as part of the same harassment. Clark also describes
harassment by her coworkers, their snide comments, and an overheard
conversation in which a coworker described a desire for Clark’s termination.
When Clark reported her coworkers’ conduct, Ochoa told her she was “being
too sensitive” and human resources did not act upon the information.
      The district court granted Charter summary judgment on Clark’s
harassment claim, reasoning that “the evidence cited by Plaintiff does not rise
to the level of actionable harassment by her co-workers based on disability.”
We agree. Clark’s supervisors’ expressions of displeasure and insufficient
sympathy must be juxtaposed with their willingness to grant the
accommodations that Clark requested of Charter—from exemption from the
night shift, to breaks, and leave to address her narcolepsy. As the district court



      16   Id.
      17   McConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 558, 564 (5th Cir. 1998).
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found, in this context “[m]ere displeasure from a coworker is insufficient to
state a claim of actionable harassment.” Likewise, Clark’s co-workers may
have behaved with insensitivity and rudely, but this is not actionable
harassment. The district court did not err in granting summary judgment to
Charter on this claim.

                                    III.
     We AFFIRM the district court’s grant of summary judgment to Charter.




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