     Case: 12-41121       Document: 00512368697         Page: 1     Date Filed: 09/10/2013




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

                                                                            FILED
                                                                        September 10, 2013

                                       No. 12-41121                        Lyle W. Cayce
                                                                                Clerk

CAROLYN S. SAPP,

                                                  Plaintiff - Appellant
v.

PATRICK R. DONOHOE, Post Master General,

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 1:07-CV-650


Before HIGGINBOTHAM, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
       Carolyn Sapp, proceeding pro se, appeals the district court’s entry of
summary judgment against her on her workplace discrimination and retaliation
claims. We AFFIRM.
                           FACTS AND PROCEEDINGS
       Sapp began working for the United States Postal Service (“USPS”) in 1980.
At all times relevant, Sapp was employed as a supervisor in the Distributions



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Operations department at the USPS’s Beaumont, Texas Remote Encoding
Center (“Beaumont REC”).
      A. EEO #1
      Sapp began having workplace conflicts with her subordinates in 1998.
After a series of incidents in the spring and summer of 2001, which resulted in
several employees filing grievances against Sapp, Sapp’s supervisor, Don Hale,
offered Sapp a number of ways to resolve the growing interpersonal difficulties
she faced at work. First, on August 16, he offered Sapp a new assignment at the
post office in Nederland, Texas, which she declined. Second, a day later, he
recommended that she seek counseling on improving her communication skills
through the Employee Assistance Program, which Sapp did.              Third, on
September 10, he changed Sapp’s schedule from an afternoon shift to a night
shift to separate Sapp from the employees with whom she had fought. Less than
a week after this scheduling shift, Sapp stopped coming to work.
      On December 18, Sapp submitted a workers’ compensation claim to the
Department of Labor’s Office of Workers’ Compensation Programs (“OWCP”).
In it, she claimed that she had developed major depression, anxiety, panic
disorder, and sleeping problems as a result of a hostile work environment. After
some miscommunications between the USPS and OWCP temporarily held up the
processing of her claim, OWCP denied Sapp’s claim on June 21, 2002, for failure
to show causation and upheld its denial on three subsequent occasions.
      When she stopped coming in to work in September 2001, Sapp had
initially requested that her accrued sick leave be applied to her absences. She
exhausted this leave by early 2002. On April 26, Sapp requested six weeks of
advanced sick leave, submitting a letter from a doctor that stated that she was
to be allowed off work, but which failed to provide an estimated date on which
she could resume her duties. One of her supervisors, Danny Smith, denied this
request. USPS policy requires those requesting advanced sick leave to provide

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an anticipated date of return. The USPS then began to apply her accrued
annual leave to her absences. On May 30, Sapp requested that her annual leave
be restored and that she instead be placed on leave without pay status for her
absences since exhausting her sick leave. On September 11, the USPS sent Sapp
an invoice to buy back her annual leave.
      On October 9 and 10, Sapp requested “work-restriction” and “light-duty
request” forms and information about reasonable accommodations from three
supervisors. None were able to provide her with these forms, allegedly because
they do not exist. On their advice, Sapp submitted a request to Smith asking to
return to work on light duty and for a nomination for referral to the District
Reasonable Accommodation Committee (“DRAC”). In support of this request,
she submitted medical evaluations from three physicians. One of these, from Dr.
Ravikumar Kanneganti, diagnosed her with depression, dysthymia, and panic
disorder, and instructed that if returned to work Sapp should have no contact
with any of her former co-workers, and that she should “be relatively isolated
from peers and supervisors.” The second evaluation, from Dr. Shama Quraishi,
stated that Sapp had no limitations at all. The third, from Dr. Jorge Raichman,
diagnosed Sapp with paranoid personality disorder, and suggested that she
should have no further contact with her previous co-workers, that she should be
given an isolated position with little contact with co-workers or the public, and
that she should not be placed in a position in which she would have to criticize
others’ work.
      The DRAC found that Sapp was not disabled and further found that,
regardless of her disability status, she was incapable of performing the essential
functions of her position with or without accommodation. Sapp twice requested
reconsideration of the DRAC’s decision by the Southwest Reasonable
Accommodation Committee (“SWRAC”), which upheld the DRAC’s findings.



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Nevertheless, she later requested a permanent light-duty assignment from
Smith, who denied her request based on the DRAC’s findings.
        Beginning as early as September 27, 2001, Sapp had sought counseling
with the Equal Employment Opportunity Commission (“EEOC”). She filed a
number of formal complaints that were eventually consolidated, on June 17,
2003, into a single consolidated Equal Employment Opportunity claim (“EEO
#1”).   In it, she alleged discrimination on the basis of her race—Sapp is
black—and gender, retaliation for Equal Employment Opportunity (“EEO”)
activity, discrimination on the basis of her disability, and a hostile work
environment.
        The events that allegedly supported these claims included Hale’s proposal
that Sapp relocate, Hale’s change of her schedule, various complaints related to
the docking of her annual leave after she stopped working, various complaints
relating to the processing of her requests for light-duty assignments, and various
complaints related to the DRAC’s review process. An administrative judge
entered an order on September 30, 2004, finding no discrimination, retaliation,
or hostile work environment. The USPS affirmed this decision, and the EEOC’s
Office of Federal Operations did as well.
        B. EEO #2
        On March 10, 2006, Sapp submitted a request to Smith to return to work
and for reasonable accommodations. She also requested various forms related
to disability accommodations that the USPS claims do not exist. Smith did not
respond to Sapp until May 12, and on May 26 he denied Sapp’s request for a
permanent light-duty assignment. On Smith’s request, Sapp submitted an
updated medical evaluation from Dr. Kanneganti, whose assessment of Sapp’s
medical condition was unchanged from 2002. Sapp was referred to the DRAC
for consideration of reasonable accommodations, and the DRAC promptly denied
her request on November 9, 2006.

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      On the basis of these events and others related to her attempt to return
to work on light duty during this timeframe, Sapp filed a second EEO complaint
alleging discrimination on the basis of a mental disability and retaliation. An
administrative judge denied this complaint on September 12, 2007, and the
USPS affirmed this decision.
      C. Termination
      On June 11, 2007, the USPS issued a notice of proposed separation to
Sapp, indicating that it considered her unable to perform her duties.
Subsequently, on September 5, the entire workforce at the Beaumont REC,
including Sapp, received notice that their positions were being terminated
pursuant to a reduction in force (“RIF”). The USPS rescinded its June 11 notice
and a subsequent decision letter sent to Sapp regarding her termination, and
Sapp’s position was instead eliminated along with the rest of the staff of the
Beaumont REC.
      D. Litigation
      Sapp filed the instant matter in the district court on September 24, 2007,
alleging claims arising from EEO #1, EEO #2, a further EEO claim she filed
regarding her termination, and a panoply of other claims. The USPS filed a
partial motion to dismiss all of Sapp’s claims other than those related to EEO #1
and EEO #2, arguing that they were not administratively exhausted. The
district court, adopting a magistrate judge’s report and recommendations, issued
a partial final judgment dismissing these claims, Sapp appealed to this court,
and we affirmed the district court. See Sapp v. Potter, 413 F. App’x 750, 750-54
(5th Cir. 2011).
      The claims that Sapp administratively exhausted in EEO #1 and EEO #2
were for discrimination under the Rehabilitation Act, 29 U.S.C. § 701 et seq.,
failure to accommodate under the Rehabilitation Act, discrimination under Title
VII, 42 U.S.C. § 2000e-2 et seq., retaliation under the Rehabilitation Act and

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Title VII, and a hostile work environment under the Rehabilitation Act and Title
VII. Sapp and the USPS filed cross motions for summary judgment on these
claims. The district court, adopting the report and recommendations of a
magistrate judge over Sapp’s objections, granted the USPS’s motion for
summary judgment, denied Sapp’s motion, and dismissed all of Sapp’s remaining
claims. Sapp timely appeals.
                          STANDARD OF REVIEW
      We review a district court’s grant of summary judgment de novo, applying
the same standard as the district court. United States ex rel. Jamison v.
McKesson Corp., 649 F.3d 322, 326 (5th Cir. 2011). Summary judgment is
appropriate where, “viewing the evidence in the light most favorable to the non-
moving party, there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Id. (citing FED. R. CIV. P. 56(a)).
                                 DISCUSSION
      Sapp’s voluminous pro se briefing does not clearly delineate which aspects
of the district court’s opinion she is challenging on appeal. She also appears to
present facts and argue extensively about issues extraneous to the district
court’s order at issue in this appeal, and she otherwise raises issues not properly
before the court. Liberally construing Sapp’s briefs, see Davison v. Huntington
Ingalls, Inc., 712 F.3d 884, 885 (5th Cir. 2013), we deem her to be challenging
the district court’s dismissal of her Rehabilitation Act and Title VII
discrimination and retaliation claims.
      When a plaintiff relies on circumstantial evidence in the employment
discrimination or retaliation context, we apply the McDonnell Douglas burden-
shifting framework. See McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir.
2007).
      Under that framework, the plaintiff must first establish a prima
      facie case of discrimination, which requires a showing that the


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      plaintiff (1) is a member of a protected group; (2) was qualified for
      the position at issue; (3) . . . suffered some adverse employment
      action by the employer; and (4) . . . was treated less favorably than
      other similarly situated employees outside the protected group. To
      establish a prima facie case of retaliation, the plaintiff must
      establish that (1) he participated in [a protected activity]; (2) his
      employer took an adverse employment action against him; and (3)
      a causal connection exists between the protected activity and the
      adverse employment action.
Id. at 556-57 (citations omitted).
      Once the plaintiff makes his prima facie showing, the burden then
      shifts to the defendant-employer to articulate a legitimate,
      non-discriminatory reason for the adverse employment action. Once
      the employer articulates such a reason, the burden then shifts back
      upon the plaintiff to establish by a preponderance of the evidence
      that the articulated reason was merely a pretext for unlawful
      discrimination.
McInnis v. Alamo Cmty. College Dist., 207 F.3d 276, 280 (5th Cir. 2000).
      A. Rehabilitation Act Discrimination
      Sapp contends that she was discriminated against on the basis of a
disability, in violation of the Rehabilitation Act. To establish a prima facie case
of discrimination under the Rehabilitation Act, a plaintiff must show that (1) she
has a disability; (2) she was otherwise qualified for her job; (3) she worked for a
program or activity receiving Federal financial assistance; and (4) that she was
discriminated against “by reason of her . . . disability.” See 29 U.S.C. § 794(a);
Hileman v. City of Dall., 115 F.3d 352, 352 (5th Cir. 1997). Sapp has failed to
meet this burden.
      We assess whether a plaintiff is otherwise qualified for a given job based
on whether (1) “the individual could perform the essential functions of the job”;
and, (2) if not, “whether any reasonable accommodation by the employer would
enable him to perform those functions.” Chandler v. City of Dall., 2 F.3d 1385,
1393-94 (5th Cir. 1993). As explained below, the evidence suggests either that


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Sapp could perform the essential functions of her job or that she was not
disabled.
      Two of the three medical evaluations that Sapp submitted in her request
to return to light duty state that Sapp could only return to work under
conditions in which she would have no contact with her former co-workers at the
Beaumont REC and in which she would have little contact with any co-workers
or the public. Uncontested record evidence indicates that REC supervisors are
required as a part of their job to have extensive contact with their subordinates.
These evaluations, if credited, demonstrate that Sapp could not perform the
essential functions of her job.
      There is also evidence in the record that tends to contradict these medical
evaluations, namely the medical evaluation by Dr. Quraishi that Sapp
submitted. Doctor Quraishi’s report stated that Sapp “has been under my care
and no longer has limitations” (emphasis added). Were Dr. Quraishi’s report to
be credited by a fact finder over the other two evaluations, Sapp would fail to
show that she was disabled at all. See 29 U.S.C. § 705(20)(A). As a result, we
agree with the district court that Sapp has failed to state a prima facie case of
discrimination under the Rehabilitation Act, because uncontroverted record
evidence indicates either that Sapp was not otherwise qualified for her job or
that Sapp was not in fact disabled. See Hileman, 115 F.3d at 352.
      Sapp also contends that the USPS failed to make reasonable
accommodations of her disability. If true, such a failure would constitute
discrimination under the Rehabilitation Act. Sapp’s only substantive argument
on this ground is that she could have been assigned to a different position by the
USPS in which she could have functioned despite her limitations. However,
Sapp has failed to introduce evidence of any such position that was available
contemporaneously with the time periods that are the subject of her two EEO
actions. As the plaintiff bears the burden of showing a failure to accommodate

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under the Rehabilitation Act, see Riel v. Elec. Data Sys. Corp, 99 F.3d 678, 683
(5th Cir. 1996) (holding so in the context of an Americans with Disabilities Act
(“ADA”) claim); Delano-Pyle v. Victoria Cnty., 302 F.3d 567, 574 (5th Cir. 2002)
(holding that “jurisprudence interpreting either” the ADA or the Rehabilitation
Act “is applicable to both” (quoting Hainze v. Richards, 207 F.3d 795, 799 (5th
Cir. 2000))), this deficiency is fatal to her argument.
      B. Title VII Discrimination
      Sapp also contends that she was discriminated against on the basis of her
race and gender. Her claim on this ground fails because, as noted by the district
court, she has failed to identify a similarly situated employee not in one of her
protected classes who was treated more favorably. See McCoy, 492 F.3d at 556.
      She first points to a number of other employees from the Beaumont REC
who were transferred to different positions after their positions were terminated
as a part of the reduction in force. However, as the events related to the RIF and
Sapp’s ultimate dismissal fall outside of the bounds of the first and second EEOs,
they were not the subject of the district court’s order below and are not properly
before us now.
      Other than these employees, the only specific employee Sapp points to was
a white woman who was given a light-duty assignment as a result of a physical
disability. Because her disability was physical and Sapp’s limitations were
psychological in nature, they were not similarly-situated and the purported
disparate treatment between them cannot form the basis for a Title VII
discrimination claim. See Berquist v. Wash. Mut. Bank, 500 F.3d 344, 353 (5th
Cir. 2007) (“In disparate treatment cases, the plaintiff-employee must show
‘nearly identical’ circumstances for employees to be considered similarly
situated.” (quoting Perez v. Tex. Dep’t of Criminal Justice, 395 F.3d 206, 210 (5th
Cir. 2004))).
      C. Retaliation

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      Sapp alleges that a number of actions taken by the USPS were in
retaliation for her EEO activity, specifically the denial of her request for six
weeks of advanced sick leave in April 2002, her subsequent placement on leave-
without-pay status, various instances when USPS officials did not respond to her
requests related to her limitations as quickly as she would have liked, and the
USPS’s failure to reassign her to a new position as an accommodation.
Assuming arguendo that Sapp has stated a prima facie case of retaliation, we
nevertheless hold that her claim fails as a matter of law because the USPS has
provided legitimate non-retaliatory reasons for each of its actions, and Sapp has
failed to carry her burden of showing that these reasons were pretextual. See
McInnis, 207 F.3d at 280.
      The USPS presented evidence that the denial of advanced sick leave was
due to Sapp’s failure to comply with a policy requiring provision of an estimated
date of return to work when requesting sick leave. It also presented evidence
that Sapp was placed on leave-without-pay-status after she requested that her
absences not be credited against her accrued annual leave. With respect to the
delays in responding to Sapp’s various requests, the USPS presented evidence
that the requests either asked for forms that did not exist or were delayed
because of the complexity of Sapp’s file. Finally, it presented evidence that Sapp
never proposed a reasonable accommodation in the form of a reassignment or
otherwise.
      These non-retaliatory rationales for the incidents underlying Sapp’s
retaliation claim shift the burden back to her to show pretext. Sapp has pointed
to no valid evidence that tends to show that the USPS’s advanced rationales
were pretextual, other than temporal proximity of her EEO activity and the
complained-of actions. But “[t]emporal proximity, standing alone, is not enough”
to show pretext, Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 658 (5th Cir.
2012), and we hold that she had failed to meet her burden as a result.

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                          CONCLUSION
  For the foregoing reasons, we AFFIRM the judgment of the district court.




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HIGGINBOTHAM, Circuit Judge, specially concurring:


       I concur fully in the Court's opinion, and write separately only to note that
a Title VII discrimination claim will fail for lack of comparator evidence only
when there is a want of other evidence of discrimination. Comparator evidence
is but one form of circumstantial evidence that may be used in proving the
ultimate question of discrimination.1                 Accordingly, Sapp’s Title VII
discrimination claim fails because she has failed to identify a similarly situated
employee not in one of her protected classes who was treated more favorably and
she has failed to adduce any other evidence — circumstantial or direct — that
the USPS discriminated against her on the basis of her race or gender.




       1
          See,e.g., Black v. Pan Am. Labs., L.L.C., 646 F.3d 254, 278 (5th Cir. 2011) (Dennis,
J., dissenting) (“Comparator evidence is only one form of circumstantial evidence that may be
useful, but is not necessary, to prove the ultimate question of discrimination vel non, and
circumstantial evidence itself is not required where there is direct evidence.”).

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