Frazier v. McDonough ( 2022 )

Case: 21-20375 Document: 00516403250 Page: 1 Date Filed: 07/21/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 21, 2022
No. 21-20375 Lyle W. Cayce
Clerk
Yvette Frazier,
Plaintiff—Appellant,
versus
Denis McDonough, Secretary, U.S. Department of
Veteran Affairs,
Defendant—Appellee.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CV-11
Before Richman, Chief Judge, and Ho and Engelhardt, Circuit
Judges.
Per Curiam:*
Yvette Frazier is a Department of Veterans Affairs (“VA”) employee
who suffers from various medical conditions, including “Raynaud’s
syndrome,” which “affects blood flow to a person’s fingers.” Because of her
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-20375 Document: 00516403250 Page: 2 Date Filed: 07/21/2022
No. 21-20375
medical conditions, Frazier’s “physicians have recommended that she work
in a temperature of approximately 80 degrees.”
In this action, Frazier asserts that the VA failed to accommodate her
disability, in violation of § 504 of the Rehabilitation Act, by denying her
request to either work from a small, enclosed storage space—where she could
maintain a warmer office temperature—or telework full-time. The VA
moved for summary judgment, the magistrate judge recommended that the
VA’s motion be granted, and the district court adopted the magistrate
judge’s recommendation over Frazier’s objection. Frazier timely appealed.
On appeal, Frazier claims that the district court erred in granting
summary judgment. We do not resolve that question because this appeal has
been rendered moot.
“[M]ootness is a threshold jurisdictional inquiry.” La. Env’t Action
Network v. EPA, 382 F.3d 575, 580 (5th Cir. 2004). See also Hill v. Washburne,
953 F.3d 296, 304 (5th Cir. 2020) (“An actual case or controversy must exist
at every stage in the judicial process.”) (quotations omitted). “A claim is
moot when the parties are no longer adverse parties with sufficient legal
interests to maintain the litigation.” DeMoss v. Crain, 636 F.3d 145, 150 (5th
Cir. 2011) (quotations omitted). This court therefore “must dispose of an
appeal if ‘an event occurs while a case is pending on appeal that makes it
impossible for the court to grant any effectual relief whatever to a prevailing
party.’” Hill, 953 F.3d at 304 (quoting Church of Scientology v. United States,
506 U.S. 9, 12 (1992)).
In her operative complaint, Frazier sought compensatory damages for
intentional discrimination as well as injunctive and declaratory relief to
ensure she received “reasonable accommodations,” as required by § 504 of
the Rehabilitation Act. But as the magistrate judge noted, Frazier has
abandoned any claim of intentional discrimination. And while Frazier
2
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No. 21-20375
appears to suggest that the magistrate judge erred in denying her motion for
leave to amend her complaint a second time to add a damages claim under
§ 501 of the Rehabilitation Act, she has abandoned any such challenge by
failing to brief it. See Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993).
So that leaves only Frazier’s request for equitable relief. But Frazier
has now received the very relief she sought in this action.
Due to the COVID-19 pandemic, Frazier has been teleworking full-
time since 2020. While briefing in this appeal was underway, Frazier
formally “requested telework as an accommodation for her disability,” and
the VA “granted that request.” There was initially some confusion as to
whether this accommodation would remain in place if Frazier’s colleagues—
who are currently on a “hybrid schedule”—were to return to the office full-
time. As stated in Appellee’s June 27, 2022 letter brief, the VA has since
“guarantee[d]” that Frazier “will not be required to come into the office so
long as the essential functions of her job do not change.”
Insofar as Frazier invokes the voluntary cessation doctrine, it is well
settled that “a defendant cannot automatically moot a case simply by ending
its allegedly unlawful conduct once sued.” Spell v. Edwards, 962 F.3d 175,
179 (5th Cir. 2020) (cleaned up). “Otherwise, a defendant could engage in
unlawful conduct, stop when sued to have the case declared moot, then pick
up where he left off, repeating this cycle until he achieves all his unlawful
ends.” Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013). Thus, “allegations
by a defendant that its voluntary conduct has mooted the plaintiff’s case
require closer examination than allegations that ‘happenstance’ or official
acts of third parties have mooted the case.” Env’t Conservation Org. v. City
of Dallas, 529 F.3d 519, 528 n.4 (5th Cir. 2008). See Tucker v. Gaddis, _ F.4th
_, _, No. 20-40267, 2022 WL 2663485, at *3 (5th Cir. July 11, 2022) (per
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No. 21-20375
curiam) (highlighting “the stringent standards that govern the mootness
determination when a defendant claims voluntary compliance”).
Accordingly, we must decide “whether the [VA’s] actions are
‘litigation posturing’ or whether the controversy is actually extinguished.”
Yarls v. Bunton, 905 F.3d 905, 910 (5th Cir. 2018)).
Here, notably, “the question of mootness” has not arisen solely “by
reason of a unilateral change” on the part of the VA. See, e.g., DeFunis v.
Odegaard, 416 U.S. 312, 318 (1974). Rather, the VA’s recent telework
guarantee followed the formal request for telework as an accommodation that
Frazier made in February 2022, i.e., during the pendency of this
appeal. Under these circumstances, we are left with no reasonable basis to
doubt that the instant controversy actually has been extinguished. And
Frazier has not “identified any additional relief” that we could provide her
in light of these developments. 1 Miraglia v. Bd. of Supervisors of La. State
Museum, 901 F.3d 565, 572 (5th Cir. 2018). We therefore dismiss this appeal
as moot.
1
Frazier did seek attorney’s fees. However, “a determination of mootness neither
precludes nor is precluded by an award of attorneys’ fees.” Lauren C. ex rel. Tracey K. v.
Lewisville Indep. Sch. Dist., 904 F.3d 363, 373 (5th Cir. 2018) (quotations omitted). See also,
e.g., Habetz v. La. High Sch. Athletic Ass’n, 842 F.2d 136, 138 n.5 (5th Cir. 1988) (noting
that a dismissal on mootness grounds did “not prejudice appellant’s right, if any, to apply
for attorney’s fees and costs”).
4