     Case: 13-60374      Document: 00512490147         Page: 1    Date Filed: 01/06/2014




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

                                                                               FILED
                                    No. 13-60374                         January 6, 2014
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
LAVERNE JOHNSON,

                                                 Plaintiff-Appellant,
v.

PARKWOOD BEHAVIORAL HEALTH SYSTEM,

                                                 Defendant-Appellee.




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 2:11-CV-212


Before STEWART, Chief Judge, and SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
       In this disability discrimination case, Laverne Johnson appeals the
district court’s grant of summary judgment in favor of Defendant-Appellee. 1
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
       1 There is some dispute as to whether Johnson also sued Universal Health Services
Foundation and/or Universal Health Services Inc.; however, Johnson makes no claims
against those entities on appeal. Therefore, we need not address the dispute or any claims
made against them. See Sama v. Hannigan, 669 F.3d 585, 589 (5th Cir. 2012).
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                                 No. 13-60374
                       FACTS AND PROCEEDINGS
      Defendant-Appellee Parkwood Behavioral Health System (“Parkwood”)
employed Plaintiff-Appellant Laverne Johnson beginning in 2008 as a Director
of Utilization Review.     Parkwood operates a behavioral health facility,
providing comprehensive behavioral health and addictive disease treatment
for adults, adolescents, and children. As a condition of Johnson’s employment,
she underwent a medical screening at an off-site medical center and completed
an intake questionnaire regarding her medical history. She failed to indicate
any mental health issues, prescriptions, or prior hospitalizations resulting
from her mental health issues.
      Parkwood provided Johnson with a description of her job duties as a
Director of Utilization Review. Johnson was to serve as a liaison between
Parkwood’s medical providers and insurance companies in order to ensure a
smooth transition in patients’ treatment from inpatient to discharge. She was
responsible for advocating and negotiating with the companies for coverage of
the treatment as well as completing Family Medical Leave Act (“FMLA”)
paperwork and preparing for daily team meetings at Parkwood. She was
evaluated on February 5, 2009 for her 90-day review. The evaluation revealed
that she was meeting expectations but having difficulty using Parkwood’s
database system and preparing spreadsheets for the daily meetings. Sandra
Wallace, Johnson’s initial supervisor and CFO of Parkwood, completed this
review.
      In the beginning of 2010, Parkwood changed the titles for second-level
managers. Johnson’s title changed from “Director of Utilization Review” to
“Manager of Utilization Review” but her rate of pay, duties, and office location
did not change.      On March 2, 2010, Johnson called Parkwood’s Global
Compliance Hotline expressing three complaints about: (1) her job title change;
(2) being asked not to wear a white lab coat at work with “Dr. Laverne Johnson”
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stitched on it; and (3) her salary not being increased after the 90-day
probationary period. None of these complaints addressed her disability or
Parkwood’s alleged discriminatory practices.
      In June of 2010, Joyce Tyler became Johnson’s supervisor after the CEO
of Parkwood changed. On August 4, 2010, Tyler gave Johnson a written
warning due to Johnson’s “inattention to duties or unsatisfactory job
performance” and “noncompliance with . . . established Facility policy, or work
rules.” As noted in the write-up, Johnson exhibited a lack of knowledge about
patients and Parkwood’s procedures at daily meetings.        Additionally, her
miscommunication with others led to unplanned discharges and Parkwood’s
failure to provide patients with the maximum level of care. Tyler and Johnson
implemented a 30-day action plan to be reviewed daily.
      On September 3, 2010, Johnson, through her attorney, advised
Parkwood that she suffered from a medical condition and needed an
accommodation for this condition. Parkwood’s HR director gave Johnson the
requisite Americans with Disabilities Act (“ADA”) and FMLA paperwork to fill
out. In this paperwork, Johnson indicated that she suffered from bipolar
disorder, cardiac/heart problems, arthritis, sleep apnea, diabetes, and
migraines. Her physician indicated that Johnson “may not be able to perform
essential functions of [her] job during her flare-ups,” and Johnson “needs
coverage at work so that she can keep her follow-up appointments with her
doctors.”   Johnson gave Parkwood a list of all doctor’s appointments and
Parkwood accommodated each of these requests. Johnson never requested any
time off for any flare-ups.
      On October 29, 2010, Tyler issued a “Final Written Warning” to Johnson.
The warning noted that Johnson was failing to meet the expectations level of
performance on assigned tasks. Specifically, it referenced two incidents where
Johnson’s performance fell below expectations. The warning required Johnson
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                                       No. 13-60374
to improve her performance immediately or face further disciplinary action,
including immediate termination.
       Parkwood terminated Johnson on April 1, 2011. The following reasons
were given for her termination: (1) failure to provide the required expertise
and program knowledge in meetings with the CEO, CFO, and Tyler; (2) failure
to exhibit the knowledge of planned care for patients necessary; (3) failure to
provide trends in patient data to support her assertions in monthly reports;
and (4) her behavior “seriously compromise[d] the quality of patient care
services.”
       Johnson filed a charge with the Tennessee Human Rights Commission
and Equal Employment Opportunity Commission (“EEOC”) on April 4, 2011.
She alleged that she was denied a reasonable accommodation for her disability
and discharged “in retaliation for making a complaint in or about August or
September 2010.”         After receiving her Notice of Suit Rights Letter, she
instituted this lawsuit alleging claims of disability discrimination and
retaliation under the ADA and Title VII.               Parkwood moved for summary
judgment, which the district court granted in its entirety. 2 Johnson now
appeals that decision.
                                      DISCUSSION
       We review a district court’s grant of summary judgment de novo,
applying the same standards as the district court. Milton v. Tex. Dep’t of
Criminal Justice, 707 F.3d 570, 572 (5th Cir. 2013). Summary judgment may
be granted if 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). We



       2  In her briefing, Johnson alleges that she was fired because of her “disability or
retaliation” but never addresses the retaliation claim or challenges in any manner the district
court’s ruling. Accordingly, she has waived any challenge to the district court’s decision on
her retaliation claim and we need not address it. Sama, 669 F.3d at 589.
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                                     No. 13-60374
view all evidence in the light most favorable to the nonmoving party and draw
all reasonable inferences in that party’s favor.            Miton, 707 F.3d at 572.
However, “[c]onclusory allegations, unsubstantiated assertions, or only a
scintilla of evidence are insufficient to create genuine issue of material fact”
and will not defeat a motion for summary judgment. Id. (internal quotation
marks and citation omitted).
      Johnson argues that there are genuine issues of material fact as to
whether she was discriminated against when Parkwood fired her and when
Parkwood failed to make reasonable accommodations for her. We conclude
that both of her arguments are without merit. We hold that the district court
properly granted summary judgment in favor of Parkwood and we affirm.
   A. Johnson’s Claim of Discrimination Based on Her Termination
      In order to make out a prima facie case for discrimination under the
ADA, Johnson must show: “1) [she] suffers from a disability; (2) [she] is
qualified for the job; (3) [she] was subject to an adverse employment action;
and (4) [she] was replaced by a non-disabled person or was treated less
favorably than non-disabled employees.” Milton, 707 F.3d at 573 (internal
quotation marks and citation omitted) (alterations in original). 3 If a plaintiff
establishes a prima facie showing of discrimination under the ADA, the burden
shifts to the employer to articulate a “legitimate, non-discriminatory reason for
the adverse employment action.” McInnis v. Alamo Cmty. Coll. Dist., 207 F.3d
276, 280 (5th Cir. 2000). If the employer articulates such a reason, the burden
shifts back to the plaintiff to establish by a preponderance of the evidence that
the legitimate nondiscriminatory reason is mere pretext. Id.




      3  For purposes of the summary judgment motion, Parkwood conceded that Johnson
could establish the first two elements. Therefore, we assume Johnson can establish that she
has a disability and was qualified for the position.
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                                 No. 13-60374
      The district court concluded that Johnson failed to establish a prima
facie case because she did not present any evidence that she was replaced by a
non-disabled person or treated less favorably than non-disabled employees.
Johnson has failed to challenge this conclusion on appeal. She does not make
any argument as to this prong and fails to establish any causal relationship
between her disability and her termination. See Gomez v. Saenz, 237 F.3d 631,
*3 (5th Cir. 2000) (per curiam) (unpublished). Therefore, we agree with the
district court that she has failed to establish a prima facie case of
discrimination based on her termination.
      Even if Johnson were able to establish a prima facie case, she has not
established that there is a genuine dispute of material fact regarding
Parkwood’s legitimate, nondiscriminatory reasons for her termination. The
record lacks any evidence that would suggest Parkwood’s discharge of Johnson
was motivated by any factor other than her repeatedly deficient performance.
Johnson has offered only general accusations, speculation, and her own
subjective belief that she has been discriminated against.        These type of
assertions are inadequate to overcome summary judgment. See Henry v. Cont’l
Airlines, 415 F. App’x 537, 540 (5th Cir. 2011) (per curiam) (unpublished)
(citing Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996)
(en banc)); see also Milton, 707 F.3d at 572.
   B. Johnson’s Claim of Discrimination Based on Parkwood’s Failure to
      Accommodate

      Under the ADA, failure to accommodate a qualified individual’s known
disability is considered discrimination unless the employer can demonstrate
that the accommodation would impose undue hardship on the operation of the
employer’s business. 42 U.S.C. § 12112(b)(5)(A). An employee must inform the
employer of the need for an accommodation. Griffin v. United Parcel Serv.,
Inc., 661 F.3d 216, 224 (5th Cir. 2011). Johnson argues that there is a genuine
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                                No. 13-60374
dispute of material fact as to whether she was given the reasonable
accommodations that she required.
      Johnson acknowledged that she was allowed to take time off for her
appointments and never attempted to take time off for her flare-ups or other
appointments. She cursorily asserts that she did not want to ask Tyler for this
time off, had to work after hours to make up for going to the appointments, and
had difficulty making these appointments. However, Parkwood made every
accommodation Johnson requested. Regardless of her reasons, Johnson failed
to inform them of any other accommodations that she required. Additionally,
there is simply no evidence that Parkwood was unwilling to engage in a good-
faith, interactive process regarding Johnson’s requests for accommodations.
See id. at 224–25. For these reasons, we agree with the district court that
Johnson cannot establish a claim of discrimination based on Parkwood’s failure
to reasonably accommodate her disability.
                               CONCLUSION
      For the aforementioned reasons, we AFFIRM the district court’s grant of
summary judgment in favor of Parkwood.




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