Debra Ellen COHEN, Plaintiff-Appellant v. UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER; University of Texas Health Science Center at Tyler; Center for Clinical Research, Defendants-Appellees.
No. 13-40791
United States Court of Appeals, Fifth Circuit.
Feb. 11, 2014.
Summary Calendar.
This argument is easily dismissed. That the tribunal‘s findings do not mention child pornography does not speak to the separate issue of whether Appellant was afforded the opportunity to challenge the allegations of child pornography. In fact, it appears to prove the opposite—that Appellant successfully refuted those allegations. Indeed, the transcript from the second day of the hearing clearly establishes that Appellant was afforded the opportunity to clear his name.
Alternatively, Appellant appears to argue he is entitled to a second hearing convened solely for the purpose of clearing his name. Appellant cites no authority in support of this position, nor can we find any. To the contrary, in articulating the stigma-plus-infringement test, we have repeatedly listed the absence of a pre-termination hearing as an element of a prima facie case.9
Even assuming arguendo Appellant was not provided an adequatе opportunity to clear his name prior to discharge, the record is devoid of any evidence that he requested a name-clearing hearing. Appellant‘s record citations do not support his contentions on this point whatsoever. Thus, Appellant cannot meet the sixth nor seventh element of the stigma-plus-infringement test.
V.
It was incumbent upon Appellant to raise his First Amendment and substantive due process claims bеfore the district court. Instead, Appellant allowed those claims to languish in limbo during the pro-ceedings below and now seeks to resurrect them before this court. We will not address the merits of a constitutional claim raised essentially for the first time on appeal. Additionally, the record is clear that the district court properly dismissed Appellant‘s procedural due process claim on summary judgment. Accordingly, and for the reasons previously stated, we AFFIRM.
Madeleine B. Connor, Esq., Office of the Attorney General, Austin, TX, for Defendants-Appellees.
Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Debra Ellen Cohen brought discrimination and retaliation claims under
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
Plaintiff-Appellant Debra Ellen Cohen was diagnosed with rheumatoid arthritis sometime between 1993 and 1995.
After working with StudyManager, Cohen discovered the program had data integrity issues and was unsuited to CRC‘s needs. Cohen recommended rejecting the StudyManager contract, and CRC thereafter shut down implementation of the program. CRC then began considering competing contracts for similar computer programs, including one called “Velos.” Because of state-ordered budget cuts, UTHSC decided to forgo use of a program like StudyManager or Velos, and instead continued using the systems it had in place.
Cohen began experiencing work-related difficulties in early 2010, while CRC director Laurie Macleod, her direct supervisor, was on medical leave. When Macleod returned to work in March 2010, Cohen informed Macleod that she had been involved in a car accident. Cohen told Macleod that she was experiencing a great deal of pain, had limited use of her hands, and would need surgery on both her hands. Nevertheless, Cohen stated that she did not intend to seek disability benefits and that she could perform her job. Despite Cohen‘s assurances, Macleod approached the Human Resources department to learn how to ask Cohen about what kinds of accommodаtion Cohen would require. With Cohen‘s permission, Macleod had Cohen‘s workstation evaluated to improve Cohen‘s productivity, and an adaptive keyboard was purchased for Cohen.
Cohen underwent surgery on March 31, 2010. She returned to work on April 5, 2010, but struggled to perform her work functions. Macleod repeatedly insisted that Cohen go home and not return until Cohen‘s physician provided a work release. Ignoring Macleod‘s instructiоn, Cohen attempted to return to work several times without the proper documentation. Cohen eventually returned to work on April 14, 2010, with a note from her doctor stating that she could return on modified duty.
At some point, Macleod suggested that voice-recognition software might assist Cohen in her data-entry and related duties. Cohen submitted such a request on April 23, 2010. Macleod informed Cohen that Macleod would need to meet with Georgia Melton, UTHSC‘s Human Resources director, before purchasing the voice-recognition software.
In May, Melton provided Cohen with a permanent ADA accommodations request form. Cohen, however, insisted that she required only temporary accommodations. On May 11, 2010, Cohen met with Macleod and Melton to discuss the fact that Cohen had not turned in an ADA accommodation form. On May 19, 2010, Cohen presented a doсtor‘s note requesting accommodations and/or restrictions until August 10, 2010. At that time, Macleod informed Cohen that she had requested an analysis of the feasibility of Cohen using voice-recognition software and that the IT department had said that such a program would not interface with existing systems, would cost $1,500 per license, and was effective primarily for transcription. Cohen respond-
Cohen met with Macleod and Melton on June 1, 2010, at which time Macleod informed Melton that there was not enough work for Cohen following UTHSC‘s decision not to pursue clinical trial management programs like StudyManager. Cohen then was informed that her employment was being terminated. However, it appears that Cohen was not immediately removed from the payroll or from Macleod‘s supervision. Melton informed Cohen about a potential part-time position in the IT department. Cohen began working in the IT department on June 23, 2010. Her employment in that position ended on August 3, 2010. UTHSC‘s discharge letter explained that Cohen‘s termination was part of a reduction in force (“RIF“), and that the clinical data specialist position was being eliminated.
B. Procedural Background
Cohen filed her original complaint on December 5, 2011, alleging five claims undеr the Americans with Disabilities Act (“ADA“) of 1990,
On May 24, 2012, with the parties’ consent, the case was transferred to a magistrate judge pursuant to
Cohen subsequently moved for reconsideration under
Cohen timely filed a notice of appeal on July 23, 2013.
II. STANDARD OF REVIEW
This court reviews de novo a district court‘s order granting a defendant‘s motion for summary judgment and applies the same standard as did the district court. See Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 163 (5th Cir. 2006). “Summary judgment is aрpropriate ‘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.‘” Johnston & Johnston v. Conseco Life Ins. Co., 732 F.3d 555, 561 (5th Cir. 2013) (quoting
III. DISCUSSION
On appeal, Cohen argues that the district court erred in dismissing her claims for discrimination and retaliation under the Rehabilitation Act. The Rehabilitation Act “prohibits discrimination on the basis of disability by recipients of fedеral funds.” E.E.O.C. v. Chevron Phillips Chem. Co., LP, 570 F.3d 606, 614 n. 5 (5th Cir. 2009). Similarly, “[t]he Rehabilitation Act prohibits retaliation against individuals who have opposed discriminatory employment practices or made charges of discrimination.” Shannon v. Henderson, 275 F.3d 42, 2001 WL 1223633, at *3 (5th Cir. 2001) (table decision) (citing
Under the McDonnell Douglas framework, a plaintiff must first establish a prima facie case of discrimination or retaliation. To show discrimination under the Rehabilitation Act, “a plaintiff must prove (1) [she] is an individual with a disability; (2) who is otherwise qualified [for the position sought]; (3) who worked for a program or activity receiving Federal financial assistance; and (4) that [she] was discriminated against solely by reason of her ... disability.” Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir. 2007) (second alteration in original) (quoting Hileman v. City of Dall., Tex., 115 F.3d 352, 353 (5th Cir. 1997)) (internal quotation marks omitted). To demonstrate unlawful retaliation, a plaintiff must show that (1) she engaged in a pro-
If a plaintiff can satisfy the prima facie elements, the burden shifts to the defendant to “articulate some legitimate nondiscriminatory reason” for its actions. Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 396 (5th Cir. 1995) (quoting Tex. Dep‘t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). If the defendant meets his burden and presents such a reason, then the burden shifts back to the plaintiff to show that the nondiscriminatory justification was mere pretext for discrimination or retaliation. Seaman, 179 F.3d at 300-01.
Assuming arguendo that Cohen can meet her prima facie burden as to both her retaliation and discrimination claims, we focus our analysis on the second and third steps of the McDonnell Douglas analysis. Like the district court, we find that, in arguing that her termination was part of a RIF, UTHSC has articulated a legitimate nondiscriminatory reason for its decision. See E.E.O.C. v. Tex. Instruments Inc., 100 F.3d 1173, 1181 (5th Cir. 1996). We therefore consider whether Cohen can show that UTHSC‘s purported reason was pretext.6
The district court concluded that Cohen could not show pretext. As to her discrimination claims, the district court held that she had “not met her burden of producing sufficient evidence from which a reasonable trier of fact could conclude that [UTHSC‘s] proffered reason [was] unworthy of credence.” Likewise, as to her retaliation claims, the district court found that “the summary judgment evidence does not show that the termination of [Cohen‘s] employment would not have occurred but for her request for voice recognitiоn software.” Cohen “[did] not contradict [UTHSC‘s] evidence that the clinical trial management software was a significant portion of her job duties, that her employer stopped using the clinical trial management software, or that she was not replaced.”
Cohen resists the district court‘s conclusion by arguing that UTHSC‘s purported reason for terminating her is false. A
Cohen first points to the fact that, although UTHSC states that her employment was tеrminated as part of a RIF, hers was the only position to be eliminated, i.e., she was part of a “RIF of one.” She relies on out-of-circuit caselaw that treats such RIF-of-one terminations with suspicion. See, e.g., Bellaver v. Quanex Corp., 200 F.3d 485, 494 (7th Cir. 2000) (“RIFs typically involve the layoff of many employees at once, and employers will not be allowed cynically to avoid liability by terming a decision to fire an employee with a unique job description as а ‘RIF’ when the decision in fact was nothing more than a decision to fire that particular employee.“). Regardless of what other courts have found, Cohen ignores the context in which UTHSC ended her employment. UTHSC created Cohen‘s position to address a specific need—making a clinical trial management program called StudyManager operational. A review of the clinical data specialist pоsition‘s job summary reveals that four of the nine critical tasks associated with the position revolved around the use of StudyManager. Once UTHSC decided not to use that program, there no longer was a need for Cohen‘s position. In her deposition, Macleod stated that after UTHSC made the decision to stop using StudyManager (or its alternative, Velos), the “bulk” of Cohen‘s job disappeared, and Macleod had “difficulty keеping [Cohen] fully occupied.” Cohen has presented no evidence rebutting this testimony, aside from obliquely referencing other work she did, including web management, data entry, and assistance with Microsoft Office products, none of which was the primary focus of the clinical data specialist position.
Cohen next quotes Macleod‘s deposition testimony that the position of clinical data specialist was not eliminated, but remained open at least until October 31, 2012. According to Cohen, this contradicts UTHSC‘s representation that it decided to eliminate Cohen‘s position on June 1, 2010. Had UTHSC decided to terminate Cohen‘s employment, kept the position open, and then filled it sometime later, we might agree that there was evidence of pretext. But the mere fact that UTHSC described the position as eliminated, while Macleod сharacterized it as open, does not constitute such evidence. Macleod herself stated that Cohen‘s position was never filled—“[i]t just disappeared.” The same reasoning applies to Cohen‘s evidence that UTHSC and Macleod disagreed over whether the clinical data specialist position was “grant-funded.” But whether the position was “open” or “eliminated,” grant-funded or not, it is undisputed that, for at leаst 17 months, no other UTHSC employee filled it. Together with the evidence that Cohen‘s primary job functions were no longer required after UTHSC abandoned use of StudyManager because of budget cuts, the discrepancy between UTHSC‘s and Macleod‘s descriptions is not evidence of pretext.
Cohen also relies on an email by Melton to Macleod, in which Melton discusses Cohen‘s accommodation request. According to Cohen, Melton in the email stated that: “Apparently, [Cohen] is playing games with us. And no[,] we will not automatical-
Considered individually and collectively, Cohen‘s evidence does not show that UTHSC‘s articulated reason for terminating her—a RIF—was pretext. Simply put, UTHSC was not required to keep Cohen employed in a position for which there no longer was a need, and Cohen has presented no evidence disputing this basic fact.
Accordingly, we hold that the district court did not err in granting UTHSC‘s motion for summary judgment and dismissing Cohen‘s claims under the Rehabilitation Act.
IV. CONCLUSION
For the aforementioned reasons, the district court‘s judgment is AFFIRMED.
Frank BAYER, Plaintiff-Appellant v. Carolyn W. COLVIN, Acting Commissioner, Social Security Administration, Defendant-Appellee.
No. 13-30524
United States Court of Appeals, Fifth Circuit.
Feb. 12, 2014.