     Case: 19-20613      Document: 00515467861         Page: 1    Date Filed: 06/26/2020




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

                                                                                 FILED
                                      No. 19-20613                           June 26, 2020
                                                                            Lyle W. Cayce
CHAD AUSTGEN,                                                                    Clerk


              Plaintiff - Appellant

v.

ALLIED BARTON SECURITY SERVICES, L.L.C., now known as Allied
Universal; UNIVERSAL PROTECTION SERVICES, L.L.C., doing business
as Allied Universal (formerly known as Allied Barton Security Services,
L.L.C.),

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:18-CV-949


Before SMITH, HIGGINSON, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       Appellant, Chad Austgen (“Austgen”), filed suit against his former
employer, Allied Barton Security Services (“Allied”), alleging discrimination in
violation of the Americans With Disabilities Act (“ADA”). Austgen now appeals




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-20613

the district court’s order granting summary judgment to Allied and dismissing
his claims. Finding no genuine issues of material fact, we affirm.
                                       I.
      Austgen was hired by Allied in January 2016 as a Licensed Security
Officer at the Port of Houston. Austgen’s post required him to inspect vehicles
entering and exiting the port, which involved “extensive climbing in and out
and under commercial vehicles.” In early September 2016, Austgen reported
to Allied that the daily climbing had aggravated his chronic back pain and that
he was no longer “[]able to perform the duties of [his] position.” In response,
an Allied representative told Austgen to stay home from work. On September
14, 2016, Allied informed Austgen that he was being placed on a leave of
absence (retroactively, beginning September 5) until he could provide a doctor’s
recommendation outlining any physical restrictions required by his medical
status and his ability to return to work.
      On September 26, 2016, Allied received a physician’s note indicating that
Austgen was released to work but that he could not perform any prolonged
climbing, bending, or twisting. The following day, Allied offered Austgen the
opportunity to interview for a supervisory position at a different worksite,
Phillips 66, which would both accommodate his physical limitations and
provide equivalent compensation. Austgen accepted Allied’s proposal. He
interviewed for and accepted the position and did not report any complaints or
objections regarding his new position or duties at the Phillips 66 worksite.
      Austgen filed the instant lawsuit on March 26, 2018, alleging disability
discrimination and retaliation under the ADA. Allied moved for summary
judgment, which the district court granted and issued final judgment. Austgen
timely appealed.




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                                               II.
        “This court reviews a district court’s grant of summary judgment de
novo, applying the same standards as the trial court.” Griffin v. United Parcel
Serv., Inc., 661 F.3d 216, 221 (5th Cir. 2011). We view all evidence in the light
most favorable to the non-moving party and draw all reasonable inferences in
that party’s favor. Id. Summary judgment is appropriate where the evidence
shows that there is no genuine issue of material fact and that the moving party
is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986). “Even if we do not agree with the reasons given by the
district court to support summary judgment, we may affirm the district court’s
ruling on any grounds supported by the record.” Lifecare Hosps., Inc. v. Health
Plus of Louisiana, Inc., 418 F.3d 436, 439 (5th Cir. 2005); Griffin, 661 F.3d at
221.
                                               III.
        In his amended complaint and response to Allied’s motion for summary
judgment, Austgen asserts three separate claims under the ADA: failure to
accommodate, retaliation, and disability discrimination. While the district
court explicitly analyzed only the failure to accommodate and retaliation
claims,     1   the record supports judgment for Allied on Austgen’s disability
discrimination claim, as well. Lifecare Hosps., Inc, 418 F.3d at 439.



        1 Austgen did not raise this issue in his brief. In fact, Austgen identified only one
error in the district court’s order: that it misapplied the definition of a transitory disability.
[Blue Br.21; Gray Br.3] This argument is misplaced. As discussed more fully herein, the
district court’s decision in no way relies on a finding that Austgen’s disability was transitory.
[ROA.371] Otherwise, Austgen’s briefing before this court re-asserts that Allied variously
violated the ADA. Such dereliction constitutes inadequate briefing and, alone, provides a
sufficient ground to dismiss this appeal. See Brinkmann v. Abner, 813 F.2d 744, 748 (5th Cir.
1987) (refusing to address merits of a summary judgment appeal where appellant’s brief was
“without even the slightest identification of any error in [the district court’s] legal analysis. .
. is the same as if he had not appealed that judgment.”); United States v. Martinez-Mercado,
888 F.2d 1484, 1492 (5th Cir. 1989) (“[I]t is not the function of the Court of Appeals to comb

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                            A. Reasonable Accommodation
       The ADA prohibits covered employees from “discriminat[ing] against a
qualified individual on the basis of disability.” 42 U.S.C. § 12112(a). Under the
ADA, disability discrimination includes a failure to make “reasonable
accommodations to the known physical or mental limitations of an otherwise
qualified individual with a disability. . . unless such covered entity can
demonstrate that the accommodation would impose an undue hardship.” 42
U.S.C. § 12112(b)(5)(A).          To prevail on a failure to accommodate claim,
Austgen must prove (1) that he is a qualified individual with a disability; (2)
that the disability and its limitations were known to the employer; and (3) that
the employer failed to make reasonable accommodations for those known
restrictions. Feist v. La. Dep’t of Justice, 730 F.3d 450, 452 (5th Cir. 2013).
The term “disability” encompasses the following: (1) a mental or physical
impairment that substantially limits one or more major life activities of an
individual; (2) a record of such an impairment; or (3) being regarded as having
such an impairment. 42 U.S.C. § 12102(1).
       As noted by the district court, Austgen did not identify any major life
activities that are substantially limited by his back pain in his amended
complaint, and in his response to Allied’s motion for summary judgment, he
maintains only that Allied “perceived [Austgen] as disabled.” An employer is
not required to provide a reasonable accommodation to an individual who
meets the definition of disability solely under the “regarded as” prong. Amedee
v. Shell Chem., L.P., 953 F.3d 831, 837 n.9 (5th Cir. 2020); Bennett v. Calabrian



the record for possible error, but rather it is counsel’s responsibility to point out distinctly
and specifically the precise matters complained of”); Kelley v. Buscher, 702 F. App’x 236, 237
(5th Cir. 2017) (finding inadequate briefing on an appeal of summary judgment order where
appellant’s “brief challenges the adequacy of the process he received during his disciplinary
proceeding but fails to identify any error in the magistrate judge’s finding”).

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Chemicals Corp., 324 F. Supp. 2d 815, 838 (E.D. Tex. 2004), aff’d, 126 F. App’x
171 (5th Cir. 2005). Considering only the first element, Allied is entitled to
summary judgment.
       But even if Austgen could prove that he was disabled, his claim would
nevertheless fail. Placing Austgen on temporary leave of only a few weeks
while awaiting his doctor’s recommendations on his ability to work was a
reasonable accommodation. Moss v. Harris Cty. Constable Precinct One, 851
F.3d 413, 418 (5th Cir. 2017) (“Time off, whether paid or unpaid, can be a
reasonable accommodation”) (internal quotations omitted); Shepard v. United
Parcel Serv., Inc., 470 F. App’x 726, 732 (11th Cir. 2012) (holding that an
employer’s “decision to place [an employee] on medical leave of absence. . . was
a reasonable response to his medical restrictions and not an adverse
employment action.”). Temporary unpaid leave is not rendered unreasonable
simply because it “involve[d] some cost” to Austgen. Eversley v. MBank Dallas,
843 F.2d 172, 176 (5th Cir. 1988). And, soon after, Austgen was offered a
supervisory position that accommodated his limitations and came with no
reduction in compensation. Bruff v. N. Mississippi Health Servs., Inc., 244 F.3d
495, 502 n.23 (5th Cir. 2001).
       That Austgen initially requested to be transferred to another post at the
Port of Houston 2 and did not request time off does not change our analysis.
“The ADA provides a right to reasonable accommodation, not to the employee’s
preferred accommodation.” E.E.O.C. v. Agro Distrib., 555 F.3d 462, 471 (5th
Cir. 2009). Therefore, even assuming that Austgen incurred some financial



       2 Austgen has also failed to rebut Allied’s retort that his requested accommodation
was not reasonable because each Security Officer at the Port of Houston was required to be
available to work at any post if the need arose. Jenkins v. Cleco Power, LLC, 487 F.3d 309,
315 (5th Cir.2007) (“The plaintiff bears the burden of proving that an available position exists
that he was qualified for and could, with reasonable accommodations, perform.”).

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loss by being put on unrequested leave, there is no dispute that Allied
reasonably accommodated Austgen’s alleged disability given its timely
response and ultimate transfer to a comparable position. US Airways, Inc. v.
Barnett, 535 U.S. 391, 401 (2002).
       Relatedly, Austgen also complains that Allied failed to engage in the
interactive process required by the ADA. “[T]he regulation’s direction to the
parties to engage in an interactive process is not an end in itself—it is a means
to the end of forging reasonable accommodations.” Loulseged v. Akzo Nobel
Inc., 178 F.3d 731, 736 (5th Cir. 1999). “[W]hen an employer’s unwillingness
to engage in a good faith interactive process leads to a failure to reasonably
accommodate an employee, the employer violates the ADA.” Id.                        Thus,
Austgen’s claim, in this regard, is not actionable for the same reason his
reasonable accommodation claim fails: Allied provided a reasonable
accommodation by offering Austgen a comparable position that he could
perform with his disability. 3
                                    B. Retaliation
      To establish a prima facie case of retaliation under the ADA, Austgen
must show that (1) he participated in an activity protected under the statute;
(2) his employer took an adverse employment action against him; and (3) a
causal connection exists between the protected activity and the adverse action.
McCoy v. City of Shreveport, 492 F.3d 551, 556–57 (5th Cir. 2007). We will
assume that the first element was satisfied by Austgen’s request that he be
switched to another post. Tabatchnik v. Cont’l Airlines, 262 F. App’x 674, 676


      3  Austgen’s argument fails for an additional reason. He complains that Allied failed
to effectively communicate for nine days while he was placed on unpaid leave. However,
“[n]othing in the regulations or the cases indicates to us that an employer must move with
maximum speed to complete this process and preempt any possible concerns.” Id. at 737.
And, “undue delay is only an ADA violation to the extent it renders an accommodation (if
any) unreasonable.” Schilling v. La. DOT & Dev., 662 F. App’x 243, 247 (5th Cir. 2016).

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(5th Cir. 2008) (“It is undisputed that making a request for a reasonable
accommodation under the ADA may constitute engaging in a protected
activity.”).
      As to the second element, whether there was an adverse employment
action, we must determine if being placed on temporary unpaid leave
constitutes an action so harmful that it could dissuade a reasonable worker
from participating in protected activity under the ADA. Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006). We agree with the district court
that it does not. While it is true that unpaid medical leave can constitute an
adverse action, see id. at 72―73, such is not the case here, where the unpaid
leave was a temporary measure to accommodate Austgen’s self-reported injury
until Allied could determine―with the advice of Austgen’s doctor―a more
permanent accommodation. Clark v. Charter Commc’ns, L.L.C., 775 F. App’x
764, 767 (5th Cir. 2019) (rejecting Plaintiff’s argument that she suffered an
adverse action because “she was forced to take unpaid leave during which she
lost insurance benefits and access to health care.”) (internal quotations and
alterations omitted); compare with Burlington, 548 U.S. at 73 (“[A]n indefinite
suspension without pay could well act as a deterrent”) (emphasis added).
Because we have found that temporary unpaid leave was a reasonable
accommodation in this instance, there is no dispute that it does not constitute
an adverse action.    Allied is entitled to summary judgment on Austgen’s
retaliation claim, as well.
                          C. Disability Discrimination
      For this same reason, Austgen’s disability discrimination claim also fails.
To make out a prima facie case of disability discrimination, Austgen must
prove that (1) he is a qualified individual; (2) that he has a disability; and (3)
that he suffered a negative employment action because of the disability.


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Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, 1119 (5th Cir. 1998). Austgen’s
burden in proving that he suffered a cognizable injury is more onerous here
because in the context of a discrimination claim, only “ultimate employment
decisions” are actionable. McCoy, 492 F.3d at 560; Stringer v. N. Bolivar
Consol. Sch. Dist., 727 F. App’x 793, 804 (5th Cir. 2018) (“The definition of an
adverse employment action in the retaliation context is broader than in the
discrimination context.”).    Accordingly, because unpaid leave does not
constitute an adverse action in the retaliation context, it would also fail to
satisfy that burden for a discrimination claim. Any error committed by the
district court in not discussing Austgen’s discrimination claim was, therefore,
harmless because his claim lacks merit.
                                      IV.
      In light of the foregoing, we find no genuine issues of material fact and
that as a matter of law, Allied is entitled to judgment on all Austgen’s claims.
We AFFIRM the district court’s entry of judgment in Allied’s favor.




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