Frazier-Barnes v. McDonough ( 2023 )

Case: 22-60383 Document: 00516735561 Page: 1 Date Filed: 05/02/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
May 2, 2023
No. 22-60383 Lyle W. Cayce
____________ Clerk
Clara Denois Frazier-Barnes,
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 Mississippi
USDC No. 3:20-CV-158
______________________________
Before Richman, Chief Judge, and Stewart and Douglas, Circuit
Judges.
Per Curiam: *
Clara Denois Frazier-Barnes (“Frazier-Barnes”), proceeding pro se,
appeals the district court’s grant of the Department of Veterans Affairs’
(“VA”) motion to dismiss under Federal Rule of Civil Procedure 12(b)(6)
and motion for summary judgment under Rule 56. For the following reasons,
we AFFIRM.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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I.
Frazier-Barnes is an African American woman born in 1959. Frazier-
Barnes began working as a Nurse Coordinator at the G.V. (Sonny)
Montgomery Veterans Affairs Medical Center in Jackson, Mississippi in July
2017. She was hired as a Nurse II, Step 7 salary, and was subject to a two-
year probationary period. Frazier-Barnes’ direct supervisor was Nurse
Manager Peggy King, an African American woman born in 1955 and classified
as a Nurse III salary.
In the first few months of Frazier-Barnes’ employment, King
identified issues with Frazier-Barnes’ performance and extended her
“orientation phase” to give her additional time to complete the orientation.
During the next few months, Frazier-Barnes had interactions with three
other Nurse Managers in the presence of King. According to Frazier-Barnes,
the interactions involved “threatening language” and “aggressive behavior”
by the other Nurse Managers, without any intervention by King.
In November 2017, Frazier-Barnes developed migraines and multiple
orthopedic ankle and foot conditions. According to the VA, Frazier-Barnes
requested “sick leave” on December 4, 2017, and then was absent from work
without medical documentation from December 4, 2017, to March 29, 2018.
Frazier-Barnes claims that she was injured at work on or about December 1,
2017, because of excessive walking, and that she started “disabled veteran
leave” on December 4, 2017, but she does not cite to any evidence in the
record that supports these assertions. While Frazier-Barnes’ appellate brief
states that she requested “45-days continuation of pay” on December 12 and
a reasonable accommodation on either December 12 or 13, she likewise does
not cite to evidence in the record.
At some point, Frazier-Barnes made a formal request for an
accommodation, asking to be re-assigned to a sedentary clerical job and put
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on a limited work schedule. King denied this request on January 26, 2018.
As reasons for the denial, King wrote that the requested accommodation
“would not be effective” given that the responsibilities of the Nurse
Coordinator position required walking and standing. King instead offered to
have Frazier-Barnes make rounds on specific units, but Frazier-Barnes did
not agree to that accommodation. In February, August, and September of
2018, Frazier-Barnes had numerous requests for leave denied due to lack of
documentation.
On March 29, 2018, King requested a Nurse Professional Standards
Board (“NPSB”) summary review of Frazier-Barnes’ performance. King’s
request for a board review cited Frazier-Barnes’ issues during orientation,
her delinquencies in completing mandatory training, and her failure to
provide “appropriate medical documentation for her absence from
December 4, 2017 to March 29, 2018.” King also prepared a proficiency
report that marked Frazier-Barnes as “unsatisfactory” or “low satisfactory”
in different performance categories and recounted various issues. Frazier-
Barnes was notified of the NPSB review and her right to respond. She did
not appear at the hearing but submitted a response in writing. On July 16,
2018, the NPSB sustained most of the charges against Frazier-Barnes and
recommended her termination. Based on the NPSB recommendation,
Medical Center Director Dr. David Walker terminated Frazier-Barnes’
employment effective September 7, 2018.
Frazier-Barnes contacted an Equal Employment Opportunity
(“EEO”) counselor with the VA’s Office of Resolution Management
(“ORM”) on September 24, 2018, alleging that she was terminated,
discriminated against in compensation, denied a reasonable accommodation,
had her leave requests denied, and was subject to a hostile work environment
because of her disability and as retaliation for her prior EEO activity. Frazier-
Barnes had filed at least two prior formal EEO complaints—one in November
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2015, when she had a different job at the VA, and a second in May 2018—
that had both been dismissed as untimely.
Frazier-Barnes filed her third formal EEO complaint—which forms
the basis of this lawsuit—on November 13, 2018. The EEO complaint
included the same claims she had presented to the EEO counselor and added
the claim that she had also been subject to a hostile work environment
because of her race and age. After administrative proceedings, a final order
was issued in the VA’s favor on November 18, 2020. In the interim, Frazier-
Barnes filed this lawsuit in March 2020 and amended her complaint in March
2021. The district court granted the VA’s motion to dismiss and motion for
summary judgment in June 2022, and Frazier-Barnes appealed.
II.
“We review a district court’s grant of a motion to dismiss based on
failure to state a claim de novo, accepting all well-pleaded facts in the
complaint as true and viewed in the light most favorable to the plaintiff.” Raj
v. Louisiana State Univ., 714 F.3d 322, 329–30 (5th Cir. 2013) (citing Bass v.
Stryker Corp., 669 F.3d 501, 506 (5th Cir.2012)). “To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678, (2009) (citation and quotation omitted). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. (citation omitted).
“This court reviews de novo a district court’s grant of summary
judgment, applying the same standard as the district court.” Austin v. Kroger
Tex., L.P., 864 F.3d 326, 328 (5th Cir. 2017) (citation omitted). Summary
judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a
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matter of law.” Fed. R. Civ. P. 56(a). “A genuine issue of material fact
exists when the evidence is such that a reasonable jury could return a verdict
for the non-moving party.” Austin, 864 F.3d at 328 (internal quotation marks
and citation omitted). “All evidence is viewed in the light most favorable to
the nonmoving party and all reasonable inferences are drawn in that party’s
favor.” Id. at 328–29 (citation omitted).
However, “[a] party asserting that a fact cannot be or is genuinely
disputed must support the assertion” by “citing to particular parts of
materials in the record” or “showing that the materials cited do not establish
the absence or presence of a genuine dispute.” Fed. R. Civ. P. 56(c). A
party opposing summary judgment “must go beyond the pleadings and
designate specific facts showing that there is a genuine issue for trial.” Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).
“[C]onclusory allegations” and “unsubstantiated assertions” will not
suffice. Id. (citations omitted). “We resolve factual controversies in favor of
the nonmoving party, but only when there is an actual controversy, that is,
when both parties have submitted evidence of contradictory facts.” Id.III.
On appeal, Frazier-Barnes challenges the district court’s resolution of
seven of her claims. 1 We consider each in turn.
_____________________
1
“Where a claim is not briefed on appeal, it is abandoned.” McDowell v. Home
Depot USA, Inc., 126 F. App’x 168, 170 (5th Cir. 2005) (citing Gomez v. Chandler, 163 F.3d
921, 921 (5th Cir. 1999)). Frazier-Barnes’ brief does not address the Whistleblower
Protection Act, Prohibited Personnel Practices, and Title VII race discrimination claims
that she raised in the district court. Thus, those claims are abandoned.
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A.
Frazier-Barnes first asserts that she was entitled to medical leave as a
disabled veteran pursuant to Executive Order (“EO”) No. 5396 (July 17,
1930). 2 The district court dismissed this claim under Rule 12(b)(6). On de
novo review, we AFFIRM. EO 5396, signed in 1930 by President Herbert
Hoover, states:
With respect to medical treatment of disabled veterans who are
employed in the executive civil service of the United States, it
is hereby ordered that, upon the presentation of an official
statement from duly constituted medical authority that
medical treatment is required, such annual or sick leave as may
be permitted by law and such leave without pay as may be
necessary shall be granted by the proper supervisory officer to
a disabled veteran in order that the veteran may receive such
treatment, all without penalty in his efficiency rating. The
granting of such leave is contingent upon the veteran’s giving
prior notice of definite days and hours of absence required for
medical treatment in order that arrangements may be made for
carrying on the work during his absence.
Executive Order 5396 (July 17, 1930).
While there is no Fifth Circuit caselaw applying EO 5396, other
circuits have noted that the order by its own terms makes the granting of leave
“contingent upon the veteran’s giving prior notice of definite days and hours
of absence required for medical treatment.” Cassie v. U.S. Postal Serv., 129
F. App’x 620, 622 (Fed. Cir. 2005); see also Bankston v. Henderson, 213 F.3d
630 (4th Cir. 2000) (unpublished) (explaining that EO 5396 does not apply
_____________________
2
Frazier-Barnes also asserts that her claim arises under “the Back Pay Act, 5
U.S.C. § 5596,” and claims that she was constructively suspended. She did not make these
arguments in the district court, however, and this court will not consider claims raised for
the first time on appeal. See Stewart Glass & Mirror, Inc. v. U.S. Auto Glass Disc. Ctrs., Inc.,
200 F.3d 307, 316–17 (5th Cir. 2000).
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unless the employee “follow[s] the proper procedures for requesting leave to
obtain medical care”). The order also requires “the presentation of an
official statement from duly constituted medical authority that medical
treatment is required.” Frazier-Barnes did not include any allegations in her
amended complaint showing that she complied with EO 5396 in either
respect, nor does she cite to evidence in the record that shows a genuine
dispute of material fact on this issue. While she asserts in her brief that she
gave prior notice and that King confirmed receipt by email, her citations to
unspecified exhibits do not support her assertion. See Little, 37 F.3d at 1075(explaining that “conclusory allegations” and “unsubstantiated assertions”
do not satisfy nonmovant’s summary judgment burden).
B.
Next, Frazier-Barnes asserts that the district court erred in dismissing
her Fair Pay Act claim under Rule 12(b)(6). 3 On de novo review, we
AFFIRM. First, Frazier-Barnes’ claims of compensation discrimination
occurring from March 2014 to September 2015 were already dismissed as
untimely in a prior EEOC decision. Second, as for her timely claims, Frazier-
Barnes has not alleged that any compensation differences occurring from July
2017 to May 2018 were because of unlawful discrimination. While Frazier-
Barnes alleged that she was paid less than other employees performing
similar work, she did not allege that any compensation differences were due
to her “race, color, religion, sex, or national origin,” as required to state a
Title VII claim. See 42 U.S.C. § 2000e-2(a)(1).
_____________________
3
For the first time on appeal, Frazier-Barnes also asserts that she has a claim under
the Equal Pay Act and Paycheck Fairness Act. Again, these arguments will not be
considered. See Stewart Glass & Mirror, Inc., 200 F.3d at 316–17.
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C.
Next, Frazier-Barnes brought a claim for Title VII retaliation. The
district court granted summary judgment to the VA on this claim. We
AFFIRM. “To establish a prima facie case of retaliation, [Frazier-Barnes]
must show that: (1) she participated in an activity protected by Title VII;
(2) her employer took an adverse employment action against her; and (3) a
causal connection exists between the protected activity and the materially
adverse action.” Aryain v. Wal-Mart Stores Texas LP, 534 F.3d 473, 484 (5th
Cir. 2008). If she establishes a prima facie case, “the burden then shifts to
the employer to articulate a legitimate . . . non-retaliatory reason for its
employment action. If the employer meets this burden of production,
[Frazier-Barnes] then bears the burden of proving that the employer’s reason
is a pretext for the actual retaliatory reason.” Id. (cleaned up).
While there is no dispute that Frazier-Barnes engaged in protected
activity and was later terminated, the district court ruled that she had failed
to show a prima facie causal connection between the two events. Frazier-
Barnes contends that the “temporal proximity” between her second EEO
complaint and her termination is enough to infer a causal connection. Our
precedents hold that “temporal proximity” is “sometimes enough to
establish causation at the prima facie stage” so long as the protected activity
and the adverse action are “very close in time.” Gosby v. Apache Indus. Servs.,
Inc., 30 F.4th 523, 527 (5th Cir. 2022) (quoting Porter v. Houma Terrebonne
Hous. Auth. Bd. Of Comm’rs, 810 F.3d 940, 948–49 (5th Cir. 2015)) (cleaned
up). We have held “that a six-and-a-half-week timeframe is sufficiently
close, but that a five month lapse is not close enough, without other evidence
of retaliation, to establish the ‘causal connection’ element.” Lyons v. Katy
Indep. Sch. Dist., 964 F.3d 298, 305 (5th Cir. 2020) (citations omitted). Here,
Frazier-Barnes submitted “report of contact” forms detailing her conflicts
with King and other Nurse Managers in December 2017, contacted an EEO
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counselor in January 2018, filed her second EEO complaint in May, and was
fired in September. The process that began her termination, however, began
in late March 2018 with King’s request for an NPSB review, followed by the
NPSB report in July recommending termination. Thus, there is some
temporal proximity between Frazier-Barnes’ protected activities and the
process leading to her termination.
More importantly, however, even assuming that Frazier-Barnes
established a prima facie case, her claim would ultimately fail at the
subsequent pretext stage because our cases hold that temporal proximity
evidence alone is insufficient to show that the employer’s given reason was
pretextual and that the plaintiff was actually terminated for a retaliatory
reason. Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 808 (5th Cir.
2007) (summarizing circuit precedent and discussing additional types of
pretext evidence, including employee’s length of employment and
disciplinary record—or lack thereof—prior to engaging in protected activity;
whether employer’s non-retaliatory reason for termination was
substantiated; and whether employer commented disparagingly on
employee’s protected activity); Roberson v. Alltel Info. Servs., 373 F.3d 647,
656 (5th Cir. 2004) (“Without more than timing allegations . . . summary
judgment in favor of [the employer] was proper.”).
D.
Next, we AFFIRM the district court’s grant of summary judgment
to the VA on Frazier-Barnes’ age discrimination claim because she has not
shown a prima facie causal connection between her age and her termination.
The Age Discrimination in Employment Act (“ADEA”) applies to workers
who are at least 40 years old. 29 U.S.C. § 631. To establish a prima facie case
of age discrimination, Frazier-Barnes must show: (1) she is within the
protected class; (2) is qualified for the position; (3) suffered an adverse
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employment decision; and (4) was replaced by someone younger or treated
less favorably than similarly situated younger employees. Smith v. City of
Jackson, Miss., 351 F.3d 183, 196 (5th Cir. 2003). There is no dispute that
Frazier-Barnes is at least 40 years old and was terminated from her position.
The VA maintains that she was not “qualified.” Assuming Frazier-Barnes
was qualified, however, her claim still fails because she has put forth no
evidence that she was replaced with someone younger or otherwise
discharged because of her age. See Little, 37 F.3d at 1075. Frazier-Barnes also
argues that she applied for a “Utilization Review RN” position and that
someone younger was hired instead. But, again, she points to no evidence
that she was qualified for the position or that someone younger was hired
instead of her, and “unsubstantial assertions” are not sufficient to carry her
summary-judgment burden. Id.E.
Frazier-Barnes next brought a claim of a hostile work environment due
to disability. “[T]o succeed on a claim of disability-based harassment, the
plaintiff must prove: (1) that she belongs to a protected group; (2) that she
was subjected to unwelcome harassment; (3) that the harassment
complained of was based on her disability or disabilities; (4) that the
harassment complained of affected a term, condition, or privilege of
employment; and (5) that the employer knew or should have known of the
harassment and failed to take prompt, remedial action.” Soledad v. U.S.
Dep’t of Treasury, 304 F.3d 500, 506 (5th Cir. 2002) (quoting Flowers v. S.
Reg’l Physician Servs. Inc., 247 F.3d 229, 235–36 (5th Cir. 2001)).
Frazier-Barnes asserts that she was harassed and retaliated against
when King denied her requests for leave and accommodation and when she
was threatened and harassed by other Nurse Managers. Like with her ADEA
claim, however, Frazier-Barnes points to no summary judgment evidence
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showing that any harassment was motivated by her disability. Her subjective
belief alone does not give rise to an inference of discriminatory intent. See
Lawrence v. Univ. of Texas Med. Branch at Galveston, 163 F.3d 309, 313 (5th
Cir. 1999). Thus, we AFFIRM the district court’s grant of summary
judgment to the VA on this claim as well.
F.
Frazier-Barnes brought two claims under the Rehabilitation Act
(“RA”), a law similar to the Americans with Disabilities Act (“ADA”) but
applicable to the federal government. See Pinkerton v. Spellings, 529 F.3d 513,
517 (5th Cir. 2008) (“[T]he Rehabilitation Act of 1973 applies to federal
government departments and agencies. By contrast, the ADA, enacted in
1990, explicitly excludes the federal government from coverage.”) (footnotes
omitted); Kemp v. Holder, 610 F.3d 231, 234 (5th Cir. 2010) (explaining that
“[t]he RA and the ADA are judged under the same legal standards”). To
prevail on her RA disability discrimination claim, Frazier-Barnes must show
that “(1) [s]he is disabled within the meaning of the ADA, (2) [s]he is
qualified and able to perform the essential functions of [her] job, and (3) [her]
employer fired [her] because of [her] disability.” Kemp, 610 F.3d at 235. “To
succeed on a failure-to-accommodate claim, a plaintiff must prove: (1) [s]he
is a qualified individual with a disability; (2) the disability and its
consequential limitations were known by the covered entity; and (3) the
entity failed to make reasonable accommodations.” Ball v. LeBlanc, 792 F.3d
584, 596 n.9 (5th Cir. 2015) (citation omitted).
An individual with a disability is “qualified” if he or she “with or
without reasonable accommodations can perform the essential functions of
the employment position.” Turco v. Hoechst Celanese Corp., 101 F.3d 1090,
1092 (5th Cir. 1996) (citing 42 U.S.C. § 12111(8)). The VA does not dispute
that Frazier-Barnes is disabled but asserts that she was not qualified to
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perform the Nurse Coordinator job, with or without an accommodation. For
evidentiary support, the VA cites King’s March 2018 proficiency report and
various “assignment sheets” documenting deficiencies in Frazier-Barnes’
performance. The VA also points to evidence that her requested
accommodation of “[a] sit down job doing clerical work” with “[n]o
continuous standing or walking” on a limited schedule “would not be
effective” for the Nurse Coordinator job because that job is a
“supervisory/administrative” position that requires “long periods of
continuing walking” and “standing,” not a sedentary “clerical” position.
Rather than focusing on whether she was qualified for the Nurse
Coordinator job, with or without an accommodation, on appeal Frazier-
Barnes appears to claim that the VA violated the Rehabilitation Act by not
giving her a different job when it “failed to hire and offer her work that met
her requirements.” Frazier-Barnes asserts that there were “available
positions that she was qualified for at the time of her request” and refers
again to the “Utilization Review RN” position. But, as discussed above,
Frazier-Barnes points to no summary judgment evidence that she was
qualified for the Utilization Review RN position or that a position was
available at the time, and “unsubstantial assertions” are not sufficient to
defeat summary judgment. Little, 37 F.3d at 1075. 4
Because Frazier-Barnes has failed to point to evidence that she was
“qualified” for either position, with or without a reasonable accommodation,
we AFFIRM the district court’s grant of summary judgment to the VA on
her RA claims.
_____________________
4
Frazier-Barnes’ additional contention that the VA failed to engage in the
interactive process likewise lacks evidentiary support—and, in fact, is contradicted by the
undisputed summary judgment evidence showing that Frazier-Barnes and King did discuss
an accommodation, albeit without reaching an agreement.
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G.
Last, Frazier-Barnes asserted various claims under the Notification
and Federal Employee Antidiscrimination Act of 2002 (“No FEAR Act”).
The Act “requires that federal agencies repay any discrimination or
whistleblower damage awards out of agency funds rather than the General
Fund of the Treasury.” Glaude v. United States, 248 F. App’x 175, 177 (Fed.
Cir. 2007). “The Act also requires agencies to discipline employees who are
responsible management officials in cases in which there has been a finding
of discrimination.” Baney v. Mukasey, No. 3:06-CV-2064, 2008 WL 706917,
at *6 (N.D. Tex. Mar. 14, 2008). The district court dismissed these claims
because Frazier-Barnes failed to support them with any factual allegations in
her amended complaint, and, alternatively, because the No FEAR Act does
not provide for a private right of action. We AFFIRM. While our court has
not yet addressed the question, the Federal Circuit and numerous district
courts have held that the No FEAR Act does not provide a private right of
action. See, e.g. Glaude, 248 F. App’x at 177; Baney, 2008 WL 706917 at *6–
7 (collecting cases). But even assuming it did, Frazier-Barnes’ No FEAR Act
claims fail for the same reason as her other claims, as she has not pleaded
sufficient allegations of unlawful discrimination on account of race, gender,
disability, age, or as retaliation for engaging in protected activities, nor
pointed to summary judgment evidence showing the presence of a genuine
dispute of material fact as to any claim.
IV.
For the forgoing reasons, we AFFIRM the district court’s order
granting the VA’s motion to dismiss and motion for summary judgment.
13