United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 8, 2022
No. 21-40406
Lyle W. Cayce
Clerk
Arlicia Gosby,
Plaintiff—Appellant,
versus
Apache Industrial Services, Incorporated,
Defendant—Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
No. 1:20-cv-69
Before Southwick, Haynes, and Higginson, Circuit Judges.
Leslie H. Southwick, Circuit Judge:
A temporary employee on a construction job suffered a diabetic attack
at work. Six days later, the employee was terminated along with several
others. The employee sued her employer, alleging she had been
discriminated against due to her diabetes. The district court granted
summary judgment for the employer. We REVERSE and REMAND.
FACTUAL AND PROCEDURAL BACKGROUND
Apache Industrial Services, Inc. hired Arlicia Gosby on March 23,
2018, to work as a scaffolding helper at an Exxon plant in Beaumont, Texas.
No. 21-40406
The job consisted mostly of assisting in the building or dismantling of
scaffolds. She was required to undertake a physical examination before she
began work. In her pre-employment paperwork and physical examination,
Gosby disclosed that she suffers from diabetes, a condition covered by the
Americans with Disabilities Act (“ADA”). See, e.g., 29 C.F.R.
§ 1630.2(j)(3)(iii). On the day of her physical, Gosby’s blood glucose levels
were elevated. A nurse practitioner recommended a consultation with
Gosby’s primary care provider in addition to following a restriction against
climbing at the jobsite.
After Gosby’s doctor cleared her for work, she began on April 3, 2018.
Apache does not dispute that Gosby was qualified to do her job even after
Apache’s physician recommended she not climb in her job working with
scaffolding. Gosby worked for Apache for several weeks, with the
expectation that the job would not last more than six months. Her
employment terminated long before that six-month mark when she and
eleven other employees were included in a “reduction in force” on May 2,
2018.
Gosby alleged that her inclusion among those terminated was due to
her having diabetes. On April 26, just a week earlier, she had suffered a
diabetic attack at work and was taken to the medical tent for treatment.
Gosby’s supervisor, Charles Hutchins, was informed of the incident and sent
Gosby home to stabilize her blood sugar. Gosby soon received clearance to
return to work and informed Apache of that clearance on her next scheduled
workday. That day, though, Apache sent home the scaffolding team on
which Gosby worked, allegedly due to lack of work. Two days later, Apache
announced 12 layoffs that included Gosby. Gosby has stated that two Apache
employees, Edward Mason and Jacob Primeaux, told her that she was
included in the layoffs because of her visit to the medical tent. During her
deposition, Gosby stated that she had even earlier been warned by Primeaux
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No. 21-40406
not to go to the medical tent for a jammed finger because she “probably
would have got laid off” for being a “risk.” Gosby’s supervisor, Hutchins,
is the person who signed the paperwork for Gosby’s discharge.
Gosby filed a charge with the Equal Employment Opportunity
Commission alleging discrimination on account of her disability. After
exhausting her administrative remedies, Gosby sued Apache in the United
States District Court, Eastern District of Texas, bringing claims for damages
under the ADA. At the conclusion of discovery, the district court granted
Apache’s motion for summary judgment. Gosby timely appealed.
DISCUSSION
We review a grant of summary judgment de novo, applying the same
legal standard as the district court. Caldwell v. KHOU-TV, 850 F.3d 237, 241
(5th Cir. 2017). Summary judgment is appropriate when the movant shows
“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 view evidence
and all factual inferences in the light most favorable to the nonmoving party.
Smith v. Reg’l Transit Auth.,
827 F.3d 412, 417 (5th Cir. 2016).
The ADA prohibits discrimination against a qualified individual based
on the individual’s disability. 42 U.S.C. § 12112(a); EEOC v. LHC Grp., Inc.,
773 F.3d 688, 694 (5th Cir. 2014). An employee may use “direct or
circumstantial evidence, or both” to establish a case of discrimination.
Nall v. BNSF Ry. Co.,
917 F.3d 335, 340 (5th Cir. 2019). In cases in which
the plaintiff produces only circumstantial evidence, we proceed under the
McDonnell Douglas burden shifting framework. Goudeau v. Nat’l Oilwell
Varco, L.P.,
793 F.3d 470, 474 (5th Cir. 2015) (citing McDonnell Douglas
Corp. v. Green,
411 U.S. 792 (1973)). The framework first requires the
employee to establish a prima facie case of discrimination. See LHC Grp.,
773
F.3d at 694. That requires an employee to establish (1) she is disabled within
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No. 21-40406
the meaning of the ADA, (2) she was qualified for the job, and (3) she was
fired on account of her disability. See Nall, 917 F.3d at 341. If a prima facie
case is established, the employer has the burden of “articulat[ing] a
legitimate, non-discriminatory reason” for the firing. See
id. If the employer
does so, the burden returns to the plaintiff “to produce evidence from which
a jury could conclude that the employer’s articulated reason is pretextual.”
Cannon v. Jacobs Field Servs. N.A., Inc.,
813 F.3d 586, 590 (5th Cir. 2016).
We summarize the district court’s analysis in granting summary
judgment to Apache. First, the district court found that Gosby had failed to
establish a prima facie case of discrimination because she produced no
evidence for a causal link between her disability and termination beyond the
temporal proximity of her diabetic attack to her termination. Further, the
district court decided the temporal relationship “should be given little
weight” because Gosby expected to be laid off within six months when the
projects were completed.
The district court also disregarded Gosby’s recollection of statements
from Apache employees Primeaux and Mason because there was no evidence
the employees were involved in or made the decision to terminate Gosby. As
a result, the district court stated it viewed the evidence in Gosby’s favor but
could not infer that Apache intended to discriminate on the basis of Gosby’s
diabetes.
The district court then concluded that even had Gosby presented a
prima facie case, Apache presented a legitimate, nondiscriminatory, and
unrebutted reason for her termination. The reason was a reduction in force.
The burden then shifted to Gosby to support that the reason was pretextual.
She argued that a fact question arose because Apache offered different
explanations for how they chose employees for the reduction in force; that
another fact question remained as to whether Gosby’s work restrictions
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No. 21-40406
influenced her termination; and that Apache retained a similarly situated
employee while terminating Gosby. The district court granted summary
judgment for Apache.
Gosby argues the district court erred when it stated that temporal
proximity was insufficient to establish a prima facie case when the
employment is “short-term in nature.” She also argues that the district court
committed various errors in applying the McDonnell Douglas framework. We
now evaluate those arguments.
I. Gosby’s prima facie case
The district court found that Gosby had carried her burden to
establish a prima facie case except for failing to demonstrate a causal link
between her disability and her termination. Gosby had argued that she had
established the necessary causal connection based on the “exceptionally
close temporal proximity between” her diabetic episode that caused her to
be sent home briefly and her termination. The district court rejected that
there was any significance to the fact that only six days passed between her
diabetic attack and layoff since Gosby’s employment was to be temporary
anyway. The district court believed that if temporal proximity alone were
sufficient to establish a prima facie showing in a case with only brief
employment, “Apache would only be able to terminate Gosby during a small
portion of her employment without being at risk of a temporal proximity
argument.
We disagree with the district court. “The burden of establishing a
prima facie case of disparate treatment is not onerous.” Turner v. Kansas City
S. Ry. Co., 675 F.3d 887, 892 (5th Cir. 2012) (quoting Texas Dep’t of Cmty.
Affairs v. Burdine,
450 U.S. 248, 253 (1981)). In retaliation cases, “temporal
proximity between protected activity and [adverse employment action] is
sometimes enough to establish causation at the prima facie stage.” See
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Porter v. Houma Terrebonne Hous. Auth. Bd. of Comm’rs, 810 F.3d 940, 948–
49 (5th Cir. 2015). This guidance is qualified, though: “[T]he protected act
and the adverse employment action [must be] ‘very close’ in time.”
Id.
(alterations in original). The principle holds for discrimination cases as well.
A relevant precedent is our recent decision in Lyons v. Katy
Independent School District, 964 F.3d 298 (5th Cir. 2020). There, we found
error in a district court’s finding that a “one-week temporal proximity
between” a protected activity and an adverse action was insufficient to
establish a prima facie case.
Id. at 306. Apache, though, of course insists the
district court was correct to conclude that employment that by its very nature
is to be short term must be treated differently. We can agree at least to the
extent of saying that facts matter. Evaluating temporal proximity in the
context of employment that is understood to be short-term cannot ignore that
context. How long her employment was expected to last may have been
unknown, but all we are concerned with here is whether Gosby carried her
light burden of showing a prima facie case.
The evidence was that Gosby was terminated immediately after an
event that highlighted her ADA-protected disability. If in fact her short-term
position was to end for other reasons at the same time, that can be shown by
the employer as part of its response. Gosby, a new and disabled employee,
was included in the reduction in force. Employment was continuing for
many, and perhaps most, other scaffolding employees. The proximity of her
diabetic episode on the job and her termination was sufficient to constitute a
prima facie case that she was included in the group to be terminated for ADAviolative reasons.
If failure to satisfy this first step in the burden shifting framework was
the only reason for summary judgment, we would reverse simply for that
error. Here, though, the district court also found Gosby failed to show
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No. 21-40406
Apache’s explanation for her termination was pretextual. Thus, we
continue.
II. Pretext
After the employee makes out a prima facie case, the employer must
articulate a “legitimate, nondiscriminatory reason” for the adverse
employment action; if it does so, the burden shifts back to the employee. See
Goudeau, 793 F.3d at 474. At that point, in response to a motion for summary
judgment, “an employee must present ‘substantial evidence’ that the
employer’s legitimate, nondiscriminatory reason for termination is
pretextual.” Delaval v. PTech Drilling Tubulars, LLC,
824 F.3d 476, 480 (5th
Cir. 2016) (quoting Burton v. Freescale Semiconductor, Inc.,
798 F.3d 222, 233
(5th Cir. 2015)). A plaintiff may meet this burden by presenting “evidence
of disparate treatment or by showing that the employer’s proffered
explanation is false or ‘unworthy of credence.’” See
id. (quoting Laxton v.
Gap Inc.,
333 F.3d 572, 578 (5th Cir. 2003)).
The district court determined that Apache’s reduction-in-force
justification was a “legitimate, non-discriminatory reason for termination.”
The burden then shifted back to Gosby to rebut the reason as pretextual.
Gosby did not challenge the reduction in force itself as pretextual, but she did
claim that her inclusion in it was discriminatory. Gosby did not argue she was
“clearly better qualified than similarly situated employees” but claimed that
Apache used criteria for selecting those to be terminated that allowed her
disability to be considered. In support of the claim, she argues here as she
did in district court that factual disputes remain as to the actual reasons she
and others were selected for termination, and whether her medical
restrictions prevented her from obtaining the experience and training that
others gained. The district court found that Gosby failed to establish a
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No. 21-40406
material question of fact about whether Apache’s “reduction in force” was
pretextual.
We summarize the crux of one of Gosby’s arguments as being that
Apache was unable to express coherent, consistent criteria that it used in
reducing the force. Apache’s inability to state reliably why certain people
were chosen for termination is significant, Gosby argues, because it discredits
Apache’s insistence that no discrimination was involved.
Gosby is correct that Apache witnesses gave different rationales for
inclusion in the reduction in force at different times. One set of offered
criteria for the layoffs was that they were based on “performance, the skillset
of individuals, and time on the worksite.” Another explanation was much
more detailed, and seemingly different:
typically in a layoff, we would impact people at a lower job
level, want to keep the employees that are highly skilled, and
then also people who have had longer time at the site. . . . [s]o
it would be, again, their job title or job level. It could be
seniority, the performance. Any customer requirements at the
time would also be a consideration. You know, attendance or
discipline would also be taken into consideration. Yeah those
are the main factors that are involved in the decision.
In addition, there is no evidence that Apache evaluated both
terminated and retained employees against any fixed criteria. The record
indicates that Gosby’s supervisor, Hutchins, assessed each of the terminated
employees against a set of ten criteria. There is no similar documentary
evidence of assessments for retained employees. Indeed, Apache has argued
that these evaluations were not the basis for inclusion in the reduction in
force. The lack of evidence of a meaningful assessment process alone does
not prove that Apache discriminated against Gosby. The inconsistent
explanations and the absence of clear criteria, though, is evidence tending to
show that Apache’s “proffered explanation is false or ‘unworthy of
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No. 21-40406
credence.’” Delaval, 824 F.3d at 480 (quoting Laxton,
333 F.3d at 578). At
this point, that is enough. We hold that Gosby has presented evidence
sufficient to rebut Apache’s nondiscriminatory reason for termination and
show that a fact question exists as to whether that explanation is pretextual. 1
III. Conclusion
Gosby has established the elements of her prima facie case. She has
also presented “substantial evidence” that Apache’s nondiscriminatory
rationale for her inclusion in the reduction in force was pretextual. See
Delaval, 824 F.3d at 480. Consequently, an issue of material fact remains
regarding whether Apache discriminated against Gosby on the basis of her
disability by including her in the reduction of force. We REVERSE the
district court’s summary judgment and REMAND for proceedings
consistent with this opinion.
1
Gosby also claims that the district court improperly disregarded the warnings
allegedly made by Jacob Primeaux to avoid the medical tent and the statements by Primeaux
and Edward Mason that she had been terminated due to her disability. Apache argues that
Gosby has forfeited this argument because she did not refer to the statements “as evidence
of pretext” in her summary judgment briefing, and that the statements are hearsay and
incapable of being presented in an admissible form at trial. Those are issues relevant to the
grant of summary judgment. Because we reverse and remand for further proceedings, we
need not analyze either issue as it is unlikely either will reappear, at least in the same form.
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