     Case: 19-60203      Document: 00515302301         Page: 1    Date Filed: 02/07/2020




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

                                      No. 19-60203                            FILED
                                                                       February 7, 2020
                                                                         Lyle W. Cayce
LALANGIE HOSKINS,                                                             Clerk

              Plaintiff - Appellant

v.

GE AVIATION,

              Defendant - Appellee




                  Appeals from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 3:17-CV-224
                              USDC No. 3:18-CV-99


Before ELROD, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
       LaLangie Hoskins, pro se, sued her employer, GE Aviation, asserting
claims under the Americans with Disabilities Act (“ADA”) and Title VII of the
Civil Rights Act of 1964. The district court granted summary judgment for GE,
and Hoskins now appeals. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                              I.    Background
        GE hired Hoskins as an hourly production associate at its Batesville,
Mississippi, facility in August 2013. During her employment, this facility had
a workplace harassment policy, a Composite Operations Site Handbook, and
an integrity program called The Spirit & The Letter. Employees were expected
to raise any concerns about policy violations as promptly as possible. Hoskins
received a copy of the handbook during orientation and an updated version in
2016. The site also followed GE’s ADA compliance policy, which was available
to all employees online and was referenced in the handbook.             The ADA
compliance policy provided for an “interactive dialogue” for determining what
reasonable accommodations were appropriate for employees who requested
them.     This process could require “submission of medical information
completed by the treating physician” and other information.
        The site also limited absences or tardiness not covered by a benefit
program such as the ADA or the Family and Medical Leave Act (“FMLA”).
Excessive unexcused absenteeism was defined as more than eight missed work
hours in a ninety-day period or thirty-two hours in a year. Excessive tardiness
referred to two occasions in a seven-day period or four in a thirty-day period
when the employee was late or left early by less than one hour.
        In June 2014, Hoskins received a “coaching discussion,” the company’s
first level of disciplinary action, for taking an unauthorized break. Hoskins
reported that other members of her team had tried to set her up and called her
lazy, and she recounted an incident of sexual harassment.
        In April 2016, Hoskins filed a Charge of Discrimination against GE with
the EEOC in which she alleged sexual harassment and sex discrimination
based on incidents between August 2014 and April 2016. She also claimed that
she was disciplined in retaliation for her complaint. She later amended the


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charge to include an allegation of “sexual physical touching by a co-worker” in
April 2016, to which GE had done nothing in response. The EEOC eventually
closed the file because it was unable to find a statutory violation.
      Shortly after the first EEOC charge, the company investigated Hoskins’s
complaints.    The investigation entailed interviewing sixteen employees,
including Hoskins and the complained-of individuals, and reviewing
documentary evidence.      The investigators could not confirm any of the
allegations.   Notably, they concluded after reviewing time sheets that
Hoskins’s allegation of grabbing or slapping in 2016 “could not have occurred
in the timeframe she alleged it happened.”          The company nevertheless
recommended additional training on GE’s policies.
      Later that year, GE approved Hoskins to take intermittent FMLA leave
from May through August 2016, provided she gave notice of the same. Hoskins
received disciplinary warnings for failing to report instances of leave, and as a
result, she was cited for violating the company’s attendance policy. She had
also received a few other work-related citations and warnings in 2016.
Nevertheless, GE granted Hoskins another period of intermittent FMLA leave
from September 2016 through February 2017.
      Before the expiration of her FMLA leave, Hoskins began the process of
requesting an ADA accommodation for additional time off. In January, a Dr.
Linder filled out the ADA forms provided by GE. He reported the duration of
Hoskins’s condition as both “unknown” and two to three months, and the basis
of the diagnosis was Hoskins’s self-reporting her inability to work due to
anxiety.
      GE requested additional information from Dr. Linder to substantiate
Hoskins’s accommodation request and determine what type of accommodation
might be appropriate. The company also informed Hoskins that her request


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could not be approved based only upon the information Dr. Linder provided
and that if not supported by medical documentation, her past absences would
be considered unexcused. Hoskins ultimately failed to provide any additional
medical support despite extensions of time to do so.
      One month after the final deadline passed unmet, GE fired Hoskins for
myriad unexcused absences. She had missed 298.88 hours in the last 365 days,
296 of which had occurred in the last ninety days. GE concluded that her
“excessive absenteeism and . . . repeated attendance policy violations following
[her Decision-Making Leave] 1 ma[de] termination appropriate.”
      Hoskins filed suit against GE and two individual employees in November
2017, alleging violations of the ADA and discrimination in violation of Title VII
of the Civil Rights Act of 1964. 2 The district court soon dismissed the claims
against the two individuals, a ruling not before us. The district court then
granted summary judgment for GE on each of Hoskins’s claims and on a
hypothetical FMLA interference claim. Hoskins v. GE Aviation, No. 3:17-CV-
00224, 2019 WL 1339246, at *3–8 (N.D. Miss. Mar. 25, 2019). Hoskins timely
appealed.

                              II.   Standard of Review
      We review a district court’s grant of summary judgment de novo, using
the same standard as the district court and “viewing all facts and evidence in
the light most favorable to the non-moving party.” EEOC v. LHC Grp., Inc.,
773 F.3d 688, 694 (5th Cir. 2014) (internal quotation marks omitted).
Summary judgment is appropriate “if the movant shows that there is no



      1  Decision-Making Leave is “the last step before termination in [GE]’s progressive
discipline system.”
      2   Hoskins filed two separate lawsuits that the district court consolidated.


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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 when the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” LHC Grp., 773 F.3d at 694 (internal quotation
marks omitted).

                               III.    Discussion
      Hoskins makes no clear arguments on appeal and cites the record below
only sparingly and largely inaccurately. Although we must construe a pro se
litigant’s briefs liberally, it is not our “duty to sift through the record in search
of evidence to support a party’s opposition to summary judgment.” R.P. v.
Alamo Heights Indep. Sch. Dist., 703 F.3d 801, 811 (5th Cir. 2012) (quoting
Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994)). We do not conclude that
all of her arguments have been abandoned, but we note that we have limited
our review in line with the adequate briefing. As discussed in more detail
below, after reviewing the record, we agree with the thorough opinion by the
district court and affirm the grant of summary judgment for GE.

   A. Untimely and Barred Claims
      Hoskins makes no argument against the district court’s holdings that
(1) claims based on conduct that occurred before October 15, 2015, 3 did not
meet the 180-day deadline for EEOC discrimination charges and (2) claims
based on conduct that occurred between July 19, 2016, and January 11, 2017,
were barred because they were outside the scope of her EEOC charges. See
Hoskins, 2019 WL 1339246, at *3–4.             She has therefore abandoned any



      3 The district court mistakenly referred to both October 15, 2015, and October 15,
2016. The correct date is October 15, 2015, 180 days before Hoskins filed her first EEOC
charge on April 13, 2016.


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challenge to these holdings. See Mapes v. Bishop, 541 F.3d 582, 584 (5th Cir.
2008) (per curiam) (“Although pro se briefs are afforded liberal construction,
even pro se litigants must brief arguments in order to preserve them.” (citation
omitted)).

   B. Discrimination Based on Race and Sex
      Title VII makes it an “unlawful employment practice for an employer . . .
to discharge any individual . . . because of such individual’s race, color, religion,
sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). An employee bears the
burden of making a prima facie case, using direct or circumstantial evidence,
of discriminatory firing. Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003).
If the employee makes her case, the employer must rebut the presumption of
discrimination with “a legitimate, nondiscriminatory reason for her
termination.” Id. The employee must then show that the nondiscriminatory
reason was pretextual or that her protected characteristic was also a
motivating factor for her termination. Davis v. Farmers Ins. Exch., 372 F.
App’x 517, 519 (5th Cir. 2010).
      The district court held that Hoskins “failed to produce any evidence,
either direct or circumstantial, that she was terminated based on her race or
her gender.” Hoskins, 2019 WL 1339246, at *4. We agree. Her only evidence
of racial discrimination, aside from her own subjective belief, was that a white,
male employee who was hit by a co-worker and suffered a neck injury was
promptly given workers’ compensation and an accommodation.                However,
nothing suggests that the employee was similarly situated, as Hoskins did not
claim a similar injury supporting workers’ compensation. She also alleged that
GE was “selective” about who worked overtime and that her training was
inferior to other employees’. GE’s investigation revealed no evidence of either
allegation. Hoskins also claimed that the employee who grabbed her buttocks


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                                   No. 19-60203
was promoted, but Hoskins herself never applied for a promotion.               This
evidence does not create a prima facie case that Hoskins was fired based on
her race or gender. Even if she had made a prima facie case, Hoskins did not
produce any evidence that GE’s non-discriminatory reason for her firing—
excessive absences and tardiness—was pretextual or that race was also a
motivating factor.

   C. Sexually Hostile Work Environment
      When a claim of a sexually hostile work environment under Title VII is
based upon conduct of co-workers, an employee must make a prima facie case
by presenting facts showing that
             (1) she is [a] member of a protected group; (2) she was
             the victim of uninvited sexual harassment; (3) the
             harassment was based on sex; (4) the harassment
             affected a term, condition, or privilege of [her]
             employment; and (5) her employer knew or should
             have known of the harassment and failed to take
             prompt remedial action.
Harvill v. Westward Commc’ns, L.L.C., 433 F.3d 428, 434 (5th Cir. 2005)
(internal quotation marks omitted). The fourth element requires that the
conduct be so “severe or pervasive” that it “alter[s] the conditions of the victim’s
employment and create[s] an abusive working environment.” Id. (brackets
omitted) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)).
      The district court concluded that Hoskins had failed to satisfy elements
four and five. See Hoskins, 2019 WL 1339246, at *5. The court held that,
although undoubtedly offensive, the few isolated incidents over two years were
neither severe nor pervasive enough to create an objectively hostile or abusive
working environment. Id.; see Shepherd v. Comptroller of Pub. Accounts, 168
F.3d 871, 874 (5th Cir. 1999) (“To be actionable, the challenged conduct must
be both objectively . . . and subjectively offensive[.]”).


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                                No. 19-60203
      We need not address the fourth element because even if Hoskins had
shown severe or pervasive harassment, GE’s thorough investigation, after
which it recommended additional training on the company’s policies despite
failing to substantiate the allegations, demonstrates that the company took
prompt remedial action. Hoskins did not raise a material fact dispute to the
contrary, nor did she present evidence that the harassment continued
afterward. See Skidmore v. Precision Printing & Pkg., Inc., 188 F.3d 606, 616
(5th Cir. 1999) (holding that remedial action was sufficient when it was
reasonably calculated to, and in fact did, abate the harassment). Hoskins
failed to make a prima facie case under Title VII.

   D. Retaliation
      Both Title VII and the ADA prohibit employers from discriminating
against an employee for filing an EEOC charge. See 42 U.S.C. §§ 2000e-3(a),
12203; Grubic v. City of Waco, 262 F. App’x 665, 666 n.6 (5th Cir. 2008) (per
curiam) (noting that the same analysis governs ADA and Title VII retaliation
claims). A plaintiff claiming retaliation under either statute must make a
prima facie case by presenting facts showing that she (1) engaged in a
protected activity and (2) suffered an adverse employment action that was
(3) causally connected to the protected activity. Grubic, 262 F. App’x at 666–
67, 666 n.6. If the employee makes a prima facie case, the employer then “must
give a legitimate, nondiscriminatory reason for its adverse action,” and if it
does, the plaintiff must present facts showing that the explanation is
pretextual. Id. at 667. The district court held that although Hoskins engaged
in the protected activity of filing an EEOC charge and was later fired, there
was no evidence of a causal connection between the two. Hoskins, 2019 WL
1339246, at *5–6. We agree, and Hoskins points to no evidence to the contrary.



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                                  No. 19-60203
   E. Disability Claims
      1. ADA Reasonable Accommodation
      The ADA makes it unlawful for a covered employer to “discriminate
against a qualified individual on the basis of disability.” 42 U.S.C. § 12112(a).
It requires an employer to provide “reasonable accommodations” to “an
otherwise qualified individual” with a disability known by the employer. Id.
§ 12112(b)(5)(A); Feist v. La. Dep’t of Justice, 730 F.3d 450, 452 (5th Cir. 2013).
When an employee requests an accommodation, the employer must engage the
employee in an “interactive process,” or a “flexible dialogue,” to determine an
appropriate accommodation. Delaval v. PTech Drilling Tubulars, L.L.C., 824
F.3d 476, 481 (5th Cir. 2016). If a breakdown in this process “is traceable to
the employee,” the employer is protected from liability. Loulseged v. Akzo
Nobel Inc., 178 F.3d 731, 736 (5th Cir. 1999).
      We agree with the district court that Hoskins failed to raise a material
fact dispute about whether GE failed to make a reasonable accommodation.
See Hoskins, 2019 WL 1339246, at *7–8. GE and Hoskins engaged in an
interactive dialogue, but it was not clear how much time off Hoskins requested.
Her doctor’s notes suggest that it might have been indefinite, which is
manifestly not a reasonable accommodation. See Delaval, 824 F.3d at 482. GE
repeatedly requested adequate documentation to no avail. If an employee fails
to provide requested documentation to substantiate a claim of disability and
thereby causes a breakdown in the interactive process, the employer has not
violated the ADA. Id. at 482–83. Because Hoskins caused the interactive
process to break down, both by not clarifying what accommodation she needed
and failing to substantiate her request, we conclude that she has failed to raise
a fact question about GE’s alleged failure to provide a reasonable
accommodation.


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      2. Discharge Based on Disability
      The district court also granted summary judgment for GE to the extent
that Hoskins claimed that she was fired because of her disability. Hoskins,
2019 WL 1339246, at *8. Such a claim involves a burden-shifting framework
similar to many of the claims discussed above: The plaintiff must first make a
prima facie case by showing that “(1) [s]he had a disability, (2) [s]he was
qualified for the job, and (3) there was a causal connection between an adverse
employment action and h[er] disability.” Rodriguez v. Eli Lilly & Co., 820 F.3d
759, 765 (5th Cir. 2016). Then, if the employer offers a nondiscriminatory
reason for the employment action, the plaintiff must offer evidence that the
reason is pretextual. Id. As with her retaliation claim, Hoskins presented no
evidence that her termination was causally connected with her disability. To
the contrary, GE made numerous efforts to accommodate her disability but
eventually fired her because of excessive unexcused absences and tardiness.
As discussed above, Hoskins caused the accommodations discussion to break
down. She failed to make a prima facie case that she was fired because of her
disability.

      3. FMLA Interference
      At GE’s request, the district court granted the company summary
judgment on any potential claim that GE interfered with Hoskins’s FMLA
entitlements. Hoskins, 2019 WL 1339246, at *8. Because Hoskins neither
asserted such a claim in her complaint nor mentions it in her brief on appeal,
she has abandoned any potential appeal of this holding. See R.P., 703 F.3d at
811. Regardless, any such claim would lack merit because GE never denied
Hoskins FMLA leave. See DeVoss v. Sw. Airlines Co., 903 F.3d 487, 490 (5th
Cir. 2018) (holding that an FMLA interference claim requires that the



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employer deny the employee the FMLA benefits to which she was entitled).
AFFIRMED.




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