     Case: 16-30879   Document: 00514209175    Page: 1   Date Filed: 10/24/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                No. 16-30879                          FILED
                                                               October 24, 2017

TIMOTHY PATTON,                                                  Lyle W. Cayce
                                                                      Clerk
             Plaintiff–Appellant,

v.

JACOBS ENGINEERING GROUP, INCORPORATED; TALASCEND, L.L.C.,

             Defendants–Appellees.




                Appeal from the United States District Court
                    for the Middle District of Louisiana


                      ON PETITION FOR REHEARING
Before KING, JOLLY, and PRADO, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
      Treating Plaintiff–Appellant Timothy Patton’s petition for rehearing en
banc as a petition for panel rehearing, the petition for panel rehearing is
DENIED. The petition for rehearing en banc is also DENIED. The prior
opinion, Patton v. Jacobs Eng’g Grp., Inc., 863 F.3d 419 (5th Cir. 2017), is
withdrawn, and the following opinion is substituted:
      Patton brought this American Disabilities Act (“ADA”) case against
Jacobs Engineering Group Inc. (“Jacobs”) and Talascend, LLC (“Talascend”).
The district court granted summary judgment against Patton on his failure to
accommodate and hostile work environment claims. For the reasons stated
    Case: 16-30879    Document: 00514209175     Page: 2   Date Filed: 10/24/2017



                                 No. 16-30879
below, we AFFIRM.
                              I. BACKGROUND
      Patton designs electrical and instrumentation systems. He also has an
obvious stutter. Talascend is a staffing agency which furnishes contract
employees, including engineers and designers, to its clients. Jacobs, an
engineering firm, is one of Talascend’s clients. Patton has been an employee of
Talascend since October 2012, when he was assigned to work at Jacobs’ facility
in Baton Rouge, Louisiana. Around the time he was hired, Patton told Emily
Wimbley, a Talascend recruiter, about his stuttering and anxiety problems,
which he said “all go[] together.”
      Patton alleges that his coworkers at Jacobs harassed him on account of
his stutter. For example, coworkers would call him names such as lawnmower
and bush hog (a type of lawnmower). Additionally, coworkers who passed him
in the hallway or met him on the elevator would mock his stuttering, and
coworkers who sat near him would mock him and make loud noises right
behind him. Even his supervisor, Greg Guillory, allegedly mocked him at a
department-wide meeting in front of fifty coworkers. Patton testified that he
complained about this harassment to Guillory and Wimbley; in addition, he
testified that he called and left a message with Talascend’s human resources
department, but that this call was never returned.
      Patton also made a number of complaints about noise while he worked
at Jacobs. According to Patton, the work environment at Jacobs was full of
“loud laughter, banging, [and] horseplay.” He complained to Guillory three
times about the noise in his work space and asked Guillory “to move [him] to
an area that was quiet so that [his] nerves would not affect [his] stuttering.”
Patton also discussed the noise problem with Wimbley at Talascend. Talascend
offered to reassign Patton to another client and also raised the issue with


                                      2
    Case: 16-30879       Document: 00514209175     Page: 3   Date Filed: 10/24/2017



                                    No. 16-30879
Guillory. But Patton continued working at Jacobs and by all accounts
performed his job well.
         According to Patton, the harassment and excessive noise at Jacobs
caused him to experience severe anxiety. He emailed Bruce Kistrup, a lead
engineer, four times about taking off work due to his stress. As a result of this
stress, Patton suffered a panic attack while driving and got into a car accident
on February 28, 2014. Patton did not return to work at Jacobs after this
accident.
         On May 7, 2014, Patton filed a charge of discrimination with the
Louisiana Commission on Human Rights (“LCHR”) and the U.S. Equal
Employment Opportunity Commission (“EEOC”). 1 He asserted that he was
harassed on account of his disability. Specifically, Patton alleged the following
facts:
         I was subjected to psychological violence. People made habitual
         efforts to talk repetitively in an unnatural, intensified loud voice
         while near me. I was subjected to name calling such as “bush hog”,
         “how pathetic” and “don’t fit in.” Several people would mock my
         stuttering while looking directly at me. On one occasion Greg
         Guillory while speaking in a meeting began to stutter while
         looking directly at me. I have been excluded from work related
         lunches/dinners, left out of the communication loop and meeting
         announcements. I complained on several occasions to management
         from both Jacobs and Talascend but nothing was done. On
         February 28, 2014 I was involved in an accident and became
         stressed to the point that I am currently out on a medical leave.
Patton also filed an intake questionnaire on May 7, 2014. In the intake
questionnaire, Patton clarified that his disability consisted of stuttering,
anxiety, and noise sensitivity. He also stated that he requested changes or
assistance because of his disability but that his employer did not make any



        Although Patton filed the charge of discrimination with both the LCHR and the
         1

EEOC, it appears that only the EEOC investigated the charge.
                                          3
    Case: 16-30879      Document: 00514209175   Page: 4   Date Filed: 10/24/2017



                                 No. 16-30879
actual changes in response to his requests. Patton later amended his charge of
discrimination on September 30, 2014, to add a claim of sex discrimination.
      During the EEOC investigation, Talascend and Jacobs submitted
position statements in which they disputed Patton’s allegations of
discrimination. These position statements focused on the harassment
allegations, though Jacobs also responded to the allegation that it failed to
accommodate Patton’s disability. The EEOC issued a notice of right to sue
letter on November 24, 2014.
      Patton filed suit in Louisiana state court on February 6, 2015. He
brought four claims against Jacobs and Talascend: (1) intentional infliction of
emotional distress; (2) negligent infliction of emotional distress; (3) hostile
work environment in violation of the ADA; and (4) failure to accommodate in
violation of the ADA. Shortly after the defendants removed the case to federal
court, Patton’s negligent infliction of emotional distress claim was dismissed.
Jacobs and Talascend moved for summary judgment in May 2016.
      The district court granted summary judgment in favor of both
defendants on all claims. First, the district court held that Patton failed to
administratively exhaust his failure to accommodate claim. In the alternative,
the district court held that Patton failed to put forth sufficient evidence
showing that the defendants were aware of his disability. Second, the district
court held that Patton failed to introduce sufficient evidence of a hostile work
environment. The district court also found that Patton failed to take advantage
of the complaint procedures in either defendant’s anti-harassment policy.
Finally, the district court held that Patton failed to put forth sufficient
evidence in support of his intentional infliction of emotional distress claim.
This appeal followed.




                                       4
     Case: 16-30879    Document: 00514209175     Page: 5     Date Filed: 10/24/2017



                                  No. 16-30879
                               II. DISCUSSION
      On appeal, Patton argues that the district court erred in granting
summary judgment against him on his failure to accommodate and hostile
work environment claims. Patton does not brief his intentional infliction of
emotional distress claim; accordingly, we confine our review to his ADA claims.
A.    Standard of Review
      “This Court ‘reviews de novo the district court’s grant of summary
judgment, applying the same standard as the district court.’” Feist v. La., Dep’t
of Justice, Office of the Att’y Gen., 730 F.3d 450, 452 (5th Cir. 2013) (quoting
Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 414 (5th Cir. 2003)).
Summary judgment is appropriate “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). A genuine dispute of material fact
exists if the “evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d 396,
400 (5th Cir. 2013) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). The Court “must view all facts and evidence in the light most favorable
to the non-moving party.” Feist, 730 F.3d at 452 (quoting Juino v. Livingston
Par. Fire Dist. No. 5, 717 F.3d 431, 433 (5th Cir. 2013)).
B.    Analysis
      1. Failure to Accommodate
      The ADA forbids covered employers from “discriminat[ing] against a
qualified individual on the basis of disability” regarding the “terms, conditions,
and privileges of employment.” 42 U.S.C. § 12112(a). Discrimination includes
failure to “mak[e] reasonable accommodations to the known physical or mental
limitations of an otherwise qualified individual with a disability . . . , unless
[the employer] can demonstrate that the accommodation would impose an
undue hardship on the operation of [its] business.” Id. § 12112(b)(5)(A). To
                                        5
    Case: 16-30879     Document: 00514209175      Page: 6   Date Filed: 10/24/2017



                                  No. 16-30879
establish a failure to accommodate claim, the plaintiff must show that: “(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, 730 F.3d at 452 (quoting 42 U.S.C. § 12112(b)(5)(A)).
      Patton asserts that he is disabled on account of childhood onset fluency
disorder. He contends that “the noisy office environment heightened his
anxiety, caused [him] to suffer panic attacks and worsened his stuttering over
time.” But according to Patton, Jacobs and Talascend “did nothing” to address
the noise issue. Eventually, Patton’s anxiety caused him to miss work and get
into a car accident.
      Neither Jacobs nor Talascend contests that Patton is a qualified
individual with a disability; thus, we assume without deciding that Patton has
proved the first element of his failure to accommodate claim. But Jacobs and
Talascend dispute the other two elements—whether they knew of his disability
and whether they failed to accommodate it. In addition, Jacobs and Talascend
argue that Patton failed to administratively exhaust his failure to
accommodate claim, and Talascend argues that Patton’s charge was not timely.
We address the exhaustion argument first.
         a. Administrative exhaustion
      Before a plaintiff may file her ADA claim in federal court, she must
exhaust her administrative remedies. See Dao v. Auchan Hypermarket, 96 F.3d
787, 789 (5th Cir. 1996) (per curiam) (noting that the ADA incorporates by
reference Title VII’s administrative procedures). Specifically, the plaintiff must
file a charge of discrimination with the EEOC within 180 days of “the alleged
unlawful employment practice,” or within 300 days if the charge is filed with a
state or local agency—here, the LCHR. 42 U.S.C. § 2000e-5(e)(1).


                                        6
    Case: 16-30879     Document: 00514209175     Page: 7   Date Filed: 10/24/2017



                                  No. 16-30879
      In determining whether a plaintiff has exhausted a particular claim, we
have noted that “the scope of an EEOC complaint should be construed
liberally.” Pacheco v. Mineta, 448 F.3d 783, 788 (5th Cir. 2006). “On the other
hand, a primary purpose of Title VII is to trigger the investigatory and
conciliatory procedures of the EEOC, in attempt to achieve non-judicial
resolution of employment discrimination claims.” Id. at 788–89. To balance
these considerations, “this court interprets what is properly embraced in
review of a Title-VII claim somewhat broadly, not solely by the scope of the
administrative charge itself, but by the scope of the EEOC investigation which
‘can reasonably be expected to grow out of the charge of discrimination.’” Id. at
789 (quoting Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir.
1970)). “We engage in fact-intensive analysis of the statement given by the
plaintiff in the administrative charge, and look slightly beyond its four corners,
to its substance rather than its label.” Id.
      The district court held that Patton failed to exhaust his failure to
accommodate claim by not including it in the charge. As the district court
found, the formal charge does not suggest that either Talascend or Jacobs
failed to accommodate Patton’s disability. But Patton did state in the intake
questionnaire that he requested changes or assistance because of his disability,
and that Jacobs and Talascend “brushed [him] off” and made “no actual
changes.”
      Patton argues that the intake questionnaire should be considered a
charge under Federal Express Corp. v. Holowecki, 552 U.S. 389 (2008). There,
the Court recognized that an intake questionnaire may constitute a charge
under the Age Discrimination in Employment Act. The Court specified that “a
filing is to be deemed a charge” if it both satisfies the regulatory requirements
of a charge and may be “reasonably construed as a request for the agency to
take remedial action to protect the employee’s rights or otherwise settle a
                                        7
    Case: 16-30879    Document: 00514209175     Page: 8   Date Filed: 10/24/2017



                                 No. 16-30879
dispute between the employer and the employee.” Id. at 402. Patton’s intake
questionnaire, however, is not verified as required by EEOC regulations. 29
C.F.R. § 1601.7. Thus, the questionnaire alone cannot be deemed a charge.
      Nevertheless, if the intake questionnaire is considered part of the formal
charge Patton did file, the scope of the EEOC investigation growing out of the
charge could reasonably be expected to include a failure to accommodate claim.
We find that Patton’s intake questionnaire should be construed as part of the
EEOC charge. Patton filed his intake questionnaire together with his formal
charge of discrimination on May 7, 2014. The charge form directs complainants
to “attach extra sheet(s)” “[i]f additional paper is needed.” Moreover, the EEOC
investigation clearly encompassed Patton’s failure to accommodate claim. In
its position statement, Jacobs stated that “Patton never made any request for
reasonable accommodation from Jacobs.” The position statement also responds
to a question—presumably posed by the EEOC—about Patton’s request for a
reasonable accommodation. Thus, Patton did in fact “trigger the investigatory
and conciliatory procedures of the EEOC” regarding his failure to
accommodate claim. Pacheco, 448 F.3d at 788–89. Construing the scope of
Patton’s charge liberally, we hold that his failure to accommodate claim could
reasonably be expected to—and in fact did—grow out of his charge of
discrimination.
         b. Knowledge of disability
      In addition to finding Patton’s failure to accommodate claim
unexhausted, the district court granted summary judgment on the alternative
ground that Patton failed to put forth sufficient evidence showing that either
Jacobs or Talascend knew of his disability. “Under the ADA, an actionable
disability means, in relevant part, a physical or mental impairment that
substantially limits one or more of the major life activities of an individual.”
Taylor v. Principal Fin. Grp., 93 F.3d 155, 163 (5th Cir. 1996) (footnote
                                       8
      Case: 16-30879    Document: 00514209175        Page: 9    Date Filed: 10/24/2017



                                    No. 16-30879
omitted) (citing 42 U.S.C. § 12102). “This court has recognized that ‘where the
disability, resulting limitations, and necessary reasonable accommodations,
are not open, obvious, and apparent to the employer, the initial burden rests
primarily upon the employee . . . to specifically identify the disability and
resulting limitations, and to suggest the reasonable accommodations.’” EEOC
v. Chevron Phillips Chem. Co., LP, 570 F.3d 606, 621 (5th Cir. 2009) (omission
in original) (quoting Taylor, 93 F.3d at 165). Although the employee need not
utter any magic words, she “must explain that the adjustment in working
conditions or duties she is seeking is for a medical condition-related reason.”
Id.
       We agree with the district court that there is insufficient evidence to
prove either Jacobs’ or Talascend’s knowledge of Patton’s disability. Of course,
Patton’s stutter was obvious. And it is clear that Patton complained about
noise on several occasions. But Patton must show that the defendants
attributed Patton’s limitation—sensitivity to noise—to a physical or mental
impairment; in other words, they must have known that Patton sought a
quieter work environment because of a medical condition.
       The only evidence supporting Talascend’s knowledge of Patton’s
disability and resulting limitation is Patton’s testimony that he told Emily
Wimbley that his stuttering and anxiety problems “all go[] together.” He also
told her “that at a previous job [he] was sensitive to [noise].” These statements
are too vague to show that Patton identified his sensitivity to noise as a
limitation resulting from a disability. 2
       Whether sufficient evidence supports Jacobs’ knowledge of Patton’s
disability and resulting limitation is a closer question. Patton testified that he


       2Because we dispose of Patton’s failure to accommodate claim against Talascend on
the merits, we need not address Talascend’s alternative argument that Patton’s EEOC
charge was untimely.
                                            9
   Case: 16-30879     Document: 00514209175     Page: 10   Date Filed: 10/24/2017



                                 No. 16-30879
asked Jacobs “to move [him] to a quiet area so that [his] stuttering—[his]
nerves would decrease, [his] nervous system problems would stop causing [his]
increase in stuttering.” It is reasonable to infer that based on this request,
Jacobs was on notice that noise aggravated Patton’s anxiety, which in turn
aggravated his stuttering. But this is not enough; a jury must be able to infer
Jacobs’ knowledge of the “limitations experienced by the employee as a result
of [his] disability.” Taylor, 93 F.3d at 164 (emphasis added). In the case of a
mental disability such as childhood onset fluency disorder, specificity in
attributing a work limitation to a disability is particularly important. See id.
at 164–65. Patton did not tell Jacobs that his disability caused his noise
sensitivity, nor was this causal relationship obvious. Accordingly, as the
district court held, Patton “has not created a genuine dispute of fact that he
adequately linked office noise to an aggravation of his disability, which in turn
gave rise to a workplace limitation for which [Jacobs] should have been aware.”
The district court did not err in granting summary judgment against Patton
on his failure to accommodate claim.
      2. Hostile Work Environment
      To establish a hostile work environment claim under the ADA, a plaintiff
must show:
      (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.
Flowers v. S. Reg’l Physician Servs. Inc., 247 F.3d 229, 235–36 (5th Cir. 2001)
(quoting McConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 558, 563 (5th Cir.
1998)). “Harassment affects a ‘term, condition, or privilege of employment’ if it
is ‘sufficiently severe or pervasive to alter the conditions of the victim’s
                                       10
    Case: 16-30879       Document: 00514209175        Page: 11     Date Filed: 10/24/2017



                                      No. 16-30879
employment and create an abusive working environment.’” Hernandez v.
Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012) (quoting Ramsey v.
Henderson, 286 F.3d 264, 268 (5th Cir. 2002)). In determining whether the
work environment is hostile, this Court examines the totality of circumstances,
including “the frequency of the discriminatory conduct; its severity; whether it
is physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work performance.” Id.
(quoting Ramsey, 286 F.3d at 268). But “simple teasing, offhand comments,
and isolated incidents (unless extremely serious)” do not suffice to alter the
terms and conditions of employment. Faragher v. City of Boca Raton, 524 U.S.
775, 788 (1998) (citation and internal quotation marks omitted).
       The district court held that Patton failed to satisfy the fourth and fifth
elements of a hostile work environment claim. On appeal, Patton emphasizes
that the “vicious cycle of mental and physical abuse” he experienced while at
Jacobs created a “hostile and abusive” work environment. 3 Jacobs disputes
whether this abuse actually occurred, noting that none of Patton’s coworkers
corroborated his account and that Patton did not complain of any harassment
while he worked at Jacobs. Jacobs also argues that Patton has only pointed to
a few instances of teasing and offhand comments, none of which affected
Patton’s work performance and which do not meet the Fifth Circuit’s high bar
for a hostile work environment.
       Viewing the record in the light most favorable to Patton, a jury could find
that the harassment Patton experienced at Jacobs was sufficiently severe or
pervasive to alter the terms and conditions of his employment. There is


       3 Patton also seems to contend that general office noise at Jacobs contributed to the
hostile work environment. As the district court noted, however, a noisy office environment
does not support Patton’s ADA claim because the noise was not directed at Patton. Thus, the
noisy office environment was not “based on” Patton’s disability. Flowers, 247 F.3d at 235
(quoting McCarthy, 131 F.3d at 563).
                                            11
   Case: 16-30879    Document: 00514209175      Page: 12   Date Filed: 10/24/2017



                                 No. 16-30879
evidence that the alleged harassment was pervasive; for example, Patton
testified that “there were a lot of names by quite a few people over an extended
period of time,” and that he was called names like bush hog and lawnmower
every week. Patton was not as clear about how often his coworkers mocked his
stuttering, but his testimony suggests that he was repeatedly mocked by
various individuals—in the hallway, on the elevator, and around his desk. This
conduct rises above simple teasing and offhand comments. Cf. EEOC v. WC&M
Enters., Inc., 496 F.3d 393, 400–01 (5th Cir. 2007) (holding that “a long-term
pattern of ridicule” based on the plaintiff’s national origin and religion,
including name-calling and mocking, sufficed to establish a hostile work
environment claim under Title VII). Patton also testified about a particularly
severe incident in which his supervisor, Greg Guillory, mocked him at a
department-wide meeting. Furthermore, it is reasonable to infer that this
harassment contributed to the anxiety that forced Patton to miss work, thus
interfering with his work performance. Based on these facts, Patton has put
forth sufficient evidence in support of the fourth element of a hostile work
environment claim.
      Nevertheless, because Patton did not challenge on appeal the district
court’s determination that he “unreasonably failed to avail himself of the
procedures set forth in the anti-harassment policies maintained by both
defendants,” see Hockman v. Westward Commc’ns, LLC, 407 F.3d 317, 330 (5th
Cir. 2004), he has forfeited his objection to this determination. Therefore, we
affirm the district court’s determination that Patton failed to show that the
defendants knew or should have known of the harassment and failed to take
prompt, remedial action. The district court did not err in granting summary
judgment against Patton on his hostile work environment claim.




                                      12
   Case: 16-30879   Document: 00514209175    Page: 13   Date Filed: 10/24/2017



                              No. 16-30879
                          III. CONCLUSION
     For the foregoing reasons, the district court’s grant of summary
judgment against Patton is AFFIRMED.




                                   13
