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finding a substantial limitation upon the ability to walk when the plaintiff had "great difficulty" walking, even with aids, and could not successfully board a van provided for travel at her work
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CIVIL ACTION NO. 3:02-CV-1111-P.
July 7, 2004
MEMORANDUM OPINION AND ORDER
Now before the Court is Defendant's Motion for Summary Judgment, filed November 24, 2003. After careful consideration of the parties' briefing, the evidence, and the applicable law, the Court hereby GRANTS Defendant's Motion for Summary Judgment.
Plaintiff filed her Response to Defendant's Motion for Summary Judgment on December 16, 2003.
BACKGROUND
Plaintiff filed this suit against Defendant alleging they harassed her by denying her four hours of approved sick time and five hours of overtime pay for working a holiday, falsified information in her records, and failed to extend her accommodations for her disability. (Am. Compl. at 1.) Defendant moves for summary judgment arguing that Plaintiff cannot establish that she is a qualified individual with a disability under the Rehabilitation Act, that she requested and was denied a reasonable accommodation based on her disability, or that she was subjected to a hostile work environment. (Def.'s Mot. Summ. J. at 2.)
DISCUSSION
I. Summary Judgment Legal StandardSummary judgment shall be rendered when the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett., 477 U.S. 317, 323 (1986). The moving party bears the burden of informing the district court of the basis for its belief that there is an absence of a genuine issue for trial, and of identifying those portions of the record that demonstrate such an absence. Id. at 323. However, all evidence and the reasonable inferences to be drawn therefrom must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
Once the party has made an initial showing, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party defending the motion for summary judgment cannot defeat the motion unless he provides specific facts that show the case presents a genuine issue of material fact, such that a reasonable jury might return a verdict in his favor. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). Mere assertions of a factual dispute unsupported by probative evidence will not prevent a summary judgment. Id. at 248-50; Abbot v. Equity Group, Inc., 2 F.3d 613, 619 (5th Cir. 1993). In other words, conclusory statements, speculation and unsubstantiated assertions will not suffice to defeat a motion for summary judgment. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc).
If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to his case, and on which he bears the burden of proof at trial, summary judgment is mandatory. Celotex, 477 U.S. at 322-24; Washington v. Armstrong World Industries, Inc., 839 F.2d 1121, 1122 (5th Cir. 1988). A motion for summary judgment cannot be granted simply because there is no opposition, even if the failure to oppose it violates a local rule. Hibernia Nat'l Bank v. Adminstracion Central Sociedad Anonima, 776 F.3d 1277, 1279 (5th Cir. 1985). However, when the nonmovant fails to provide a response identifying the disputed issues of fact, the Court is entitled to accept the movant's description of the undisputed facts as prima facie evidence of its entitlement to judgment. Eversly v. Mbank Dallas, 843 F.2d 172, 173-174 (5th Cir. 1999); Nordar Holdings, Inc. v. Western Sec. (USA) Ltd., No. 3:96-CV-0427-H, 1996 WL 739019, *2 (N.D. Tex. Dec. 18, 1996).
Finally, the Court has no duty to search the record for triable issues. Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). "The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise matter in which the evidence supports his or her claim." Id. A party may not rely upon "unsubstantiated assertions" as competent summary judgment evidence. Id.
II. Theories of Liability
A. Rehabilitation Act
The Rehabilitation Act prohibits discrimination against qualified individuals with disabilities on the basis of their disabling conditions. 29 U.S.C. §§ 794 (Supp. 1990). Its purpose is to assure that disabled individuals receive the same treatment as their able-bodied peers. Chiari v. City of League City, 920 F.3d 311, 315 (5th Cir. 1991); see also Traynor v. Turnage, 485 U.S. 535, 548 (1988). The Act requires more than mere nondiscrimination; the affirmative duty to provide reasonable accommodation to qualified individuals with disabilities is considered mandatory. 29 U.S.C. § 791(b); see also Prewitt v. U.S. Postal Service, 662 F.2d 292 (5th Cir. 1981).
Most of the provisions of the Americans with Disabilities Act (ADA) are incorporated into the Rehabilitation Act. See 42 U.S.C. § 12111, et seq.; 42 U.S.C. §§ 12201-204, 12210. In fact, the Rehabilitation Act is the predecessor to the ADA and its precedent is used to interpret the ADA. Johnson v. Gambrinus/Spoetzel Brewery, 116 F.3d 1152, 1059 n. 4 (5th Cir. 1999); see e.g. Fed. Reg. 35544, 35545 (1991). Furthermore, section 504 of the Rehabilitation Act clarifies that the standards used to determine whether this section has been violated in a complaint alleging employment discrimination shall be the standards applied under title I of the ADA and the provisions of sections 501 through 504, and 510, of the ADA, as such sections relate to employment. 29 U.S.C. § 794(d). These "same basic standards and definitions are used under [both] the ADA and the Rehabilitation Act." Lottinger v. Shell Oil Co. 143 F. Supp.2d 743, 752 (S.D. Tex. 2001) (quoting Morrison v. Pinkerton, Inc., 7 S.W.3d 851, 854 n. 4 (Tex.App. Houston (1st Dis.) 1999)).
To qualify for relief under the Rehabilitation Act, Plaintiff must show that: (1) immobility and asthma are considered disabilities, or handicaps, as that term is defined in 29 U.S.C. § 706(8)(b); (2) she is "otherwise qualified" to perform the duties of Disaster Assistance Employees ("DAEs") and Disaster Temporary Employees ("DTEs") for the Federal Emergency Management Agency ("FEMA"); (3) she worked for a "program or activity" that received federal financial assistance; and (4) she was adversely treated solely as a result of her disability. See Chiari 920 F.2d at 315. Defendant contends that Plaintiff cannot satisfy elements 1, 2 and 4 of a true Rehabilitation Act Claim.
1. Was McGarthy Disabled?
In determining whether McGarthy has presented evidence sufficient to withstand summary judgment, the Court must first determine whether she has a disability. The ADA confers a special meaning to the term "disability":
(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
42 U.S.C. § 12102(2); 29 C.F.R. § 1630.2(g). Furthermore, it is established that this definition of "disability" is exactly the same as that in the Rehabilitation Act. See Exxon Corp. V.U.S. Dep. of Labor, No. 3:96-CV-3405-H, 2002 U.S. Dist. WL 356517, *5 (N.D. Tex. Mar. 5, 2002); Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 725 n. 4 (5th Cir. 1995); 29 U.S.C. §§ 701-797 (1988, Supp. III 1991 Supp. V 1993); see also Chandler v. City of Dallas, 2 F.3d 1385, 1391 n. 18 (5th Cir. 1993). Determining whether a Plaintiff is an individual with a disability involves the same analysis whether under the Rehabilitation Act or the ADA. Exxon, 2002 WL 356517 at *5. Thus, McGarthy must prove that she possesses a "physical or mental impairment which substantially limits one or more of [her] major life activities" and she must either have a record of such impairment or must be regarded as having such an impairment. Chandler, 2 F.3d at 1390; see also 29 U.S.C.S. § 706(8)(B) (1990)
a. Did McGarthy Suffer From a Physical or Mental Impairment?
McGarthy claims no mental impairment and, thus, must show that she possesses a physical impairment that substantially limits a major life activity. Chandler, 2 F.3d at 1390. For purposes of this analysis, the Supreme Court has directed us to the regulations of the Department of Health and Human Services, which defines a physical impairment as "any physiological disorder or condition or anatomical loss affecting one or more of the [major] body systems" such as the muscoskeletal or respiratory systems. School Board of Nassau County v. Arline, 480 U.S. 273, 280 (1987); 45 C.F.R. § 84.3(j)(2)(i).
i. Mobility
McGarthy has significant medical and judicial documentation supporting her claim of a mobility handicap. (Pl.'s Resp. to Def.'s Mot. Summ. J. at Ex. A.) McGarthy's leg injuries directly affected her muscoskeletal system to the extent that permanent hardware was surgically inserted in her leg, her hip was replaced with an artificial one, and she was forced to walk with canes and crutches. ( Id. at Ex. D.) For summary judgment purposes the Court find that the Plaintiff suffered from a true disability as defined by 45 C.F.R. § 84.3(j)(2)(I), and has established the first two elements of a disability finding under the Rehabilitation Act in regard to her mobility.
ii. Asthma
On the other hand, Plaintiff has failed to substantiate her claim that she is disabled due to her asthma. While McGarthy has provided medical documentation pertaining to her problems with mobility, she has failed to do so regarding her asthma, and her self-classification in 1992 does not act as a "legal record" of her impairment. Although asthma may be regarded as a true physical impairment for its impact on the respiratory system, McGarthy does not sustain her burden of proof in regard to her alleged disability because she has not provided medical evidence that would justify its classification as a "physical impairment."
b) Does McGarthy's Impairment "Substantially Limit" any of Her Major Life Activities?
While the ADA does not define "major life activities", the Department of Health and Human Services defines a "major life activity" as any function "such as caring for one's self, performing manual tasks, walking . . . breathing . . . [or] working." Bolton v. Scrivner, Inc., 36 F.3d 939, 942 (10th Cir. 1994); see also 45 C.F.R. § 84.3(j)(2)(ii). Furthermore, the EEOC regulations provide that an individual is substantially limited in a major life activity if she is "[u]nable to perform a major life activity that the average person in the general population can perform" or is "[s]ignificantly restricted as to the condition, manner or duration under which [she] can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity." 29 C.F.R. § 1630.2(j). Thus, for example, an individual who, because of an impairment, can only walk for brief periods of time would be substantially limited in the major life activity of walking. 29 C.F.R. § 1630.2. An individual who uses artificial legs would likewise be substantially limited in the major life activity of walking because the individual is unable to walk without the aid of prosthetic devices. Id.
As a result of her leg injury, McGarthy has had substantial reconstruction and replacement of various bones in her leg and must use walking aids. (Pl.'s Resp. to Def.'s Mot. Summ. J. at Ex. D.) Under any reasonable analysis McGarthy is substantially limited in the major life activity of walking when compared with the "average person." She has great difficulty walking, even with the use of aids, and cannot climb into the van provided to employees for inter-campus travel at FEMA, which further inhibits her in regard to the major life activity of walking. (Pl.'s Resp. to Def.'s Mot. Summ. J. at 7.) Therefore, it is clear that McGarthy has established the first element necessary to a Rehabilitation Act claim. For summary judgment purposes the Court finds that McGarthy suffered from a true disability as defined by 45 C.F.R. § 84.3(j)(2)(i), which substantially limited the major life activity of "walking."
2. Is McGarthy "Otherwise Qualified" to Perform the Duties Required of Her by FEMA?
The Supreme Court has defined an `otherwise qualified' individual as "one is who is able to meet all of a program's requirements in spite of his handicap." See Chandler, 2 F.3d at 1393 (quoting Southeastern Community College v. Davis, 442 U.S. 397, 406 (1979)). This definition also includes a personal safety requirement-an "otherwise qualified" handicapped person must be able to "perform the essential functions of the position in question without endangering the health and safety of the individual or others." See Chandler, 2 F.3d at 1393. Moreover, "an individual is not qualified for the job if there is genuine substantial risk that he or she could be injured or could injure others, and the employer cannot modify the job to eliminate that risk." Id.
To determine whether an individual is otherwise qualified for a given job, the Court must conduct a two part inquiry. Id. First, one must determine whether the individual could perform the "essential functions" of the job. Chiari, 920 F.2d at 315; see also Arline, 480 U.S. at 287. Second, if the Court concludes that the individual is not able to perform the essential functions of the job, the Court must further determine whether any "reasonable accommodation" by the employer would enable her to perform those functions. Chiari, 920 F.2d at 315; see also Arline, 480 U.S. at 287; Brennan v. Stewart, 834 F.2d 1248, 1262 (5th Cir. 1998). As with establishing the existence of the disability, the burden lies with the plaintiff to show that she is otherwise qualified. Chiari, 920 F.2d at 317.
McGarthy's essential functions of employment as a DTE were to field telephone calls from disaster victims, register said disaster victims into a computer system, and assign registration numbers to the victims. (Pl.'s Resp. to Mot. Summ. J. at Ex. F p. 4.) McGarthy states that she "had near perfect work performance reviews for [her] eight years" at FEMA. ( Id. at Ex. F p. 7.) Defendant offers no evidence to contest this claim and asserts only that she was reprimanded for absenteeism in October of 2000. (Def.'s Mot. Summ. J. at 6.) Furthermore, all evidence and the reasonable inferences to be drawn therefrom must be viewed in the light most favorable to the party opposing the summary judgment motion. U.S. v. Diebold, Inc., 369 U.S. at 655. Lacking any evidence to the contrary, and coupled with the fact that McGarthy was continuously employed by FEMA and converted from a DAE to a DTE (increasing the benefits available to her), the Court must view McGarthy's claim of "near perfect" performance reviews as credible. Additionally, there is nothing to indicate that McGarthy's disability would in any way effect her ability to perform the essential functions of her employment, nor would her disability endanger "the health and safety of the individual or others." Chandler 2 F.3d at 1393. Therefore, for summary judgment purposes, it is clear that McGarthy is "otherwise qualified" to perform the duties as a DTE in spite of her disability.
3. Was McGarthy Adversely Treated Solely Because of Her Disability?
The Rehabilitation Act requires that FEMA's adverse employment action be taken solely because of Plaintiff's disability. See 42 U.S.C. § 12112(a); Hamilton, 136 F.3d at 1050. To establish a prima facie case of illegal employment discrimination under the Rehabilitation Act, McGarthy is required to establish a causal connection between her condition and the alleged misconduct undertaken by her employers. Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998). The ultimate burden of persuading the trier of fact that the Defendant intentionally discriminated against the Plaintiff remains at all times with the Plaintiff. Texas Dept. Of Comm. Affairs v. Burdine, 450 U.S. 248, 253 (1981). With the Defendant's motion for summary judgment, though, the burden lies with the Defendant to establish that there is no issue of material fact with respect to the adverse treatment. Fed.R.Civ.P. 56(c); Celotex, 477 U.S. at 331.
Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee. Id. at 254. If the trier of fact believes the Plaintiff's evidence-for summary judgment purposes all evidence is taken in a light most favorable to the non-moving party — and if the employer is silent in the face of presumption, the Court must enter judgment for Plaintiff because no issue of fact remains. Burdine, 450 U.S. at 254; U.S. v. Diebold, Inc., 369 U.S. at 655. The burden shifts to the Defendant, therefore, to rebut the presumption of discrimination by producing evidence that the alleged adverse treatment of the Plaintiff was for a legitimate, nondiscriminatory purpose. Burdine, 450 U.S. at 254. In fact, the Defendant need not persuade the Court that it was actually motivated by the proffered reasons. Id. If the Defendant carries this burden of production the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity. Id. Placing this burden of production on the Defendant thus serves simultaneously to meet the Plaintiff's prima facie case by presenting a legitimate reason for the action and to frame the factual issues with sufficient clarity so that the Plaintiff is given full and fair opportunity to demonstrate pretext. Id. at 256. The sufficiency of the Defendant's evidence should be evaluated by the extent to which it fulfills these functions, but, the Plaintiff retains the burden of persuasion. Id. McGarthy must then demonstrate that the proffered reason was not the true reason for the employment action. Id. This burden now merges with the ultimate burden of persuading the Court that she has been the victim of intentional discrimination. Id. McGarthy may succeed in this either directly by persuading the Court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence. Id.; see also McDonnell Douglas v. Green, 411 U.S. 792, 804-805 (1973).
Plaintiff has alleged that she was refused sick pay, refused holiday pay, victim to harassment, and denied reasonable accommodations as a result of her disability. (Pl.'s Resp. to Def.'s Mot. Summ. J. at p. 1.) The Defendant has offered evidence indicating that FEMA has a policy that DTEs, who are considered intermittent workers, are never permitted to receive either sick pay or holiday pay. (Df.'s App. at 99-100.) Additionally, DTEs are not placed on a fixed schedule-an accommodation McGarthy claims she was denied solely as a result of her disability. Id. In fact, Defendant has offered evidence that everyone who was deployed at the time in question was kept in intermittent status, due to the size of the deployment, because FEMA did not anticipate the deployed DTEs to be working long enough to necessitate transferring them into regularly scheduled status. (Df.'s App. at 99-100.) As a result, Defendant has rebutted McGarthy's prima facie case of an adverse employment action and the burden rests on the Plaintiff to either directly or indirectly establish pretext on the part of FEMA. Burdine, 450 U.S. at 256.
Mere assertions of factual dispute unsupported by probative evidence will not prevent a summary judgment. Anderson, 477 U.S. at 248-50. Furthermore, the Plaintiff is required to identify specific evidence in the record and to articulate the precise matter in which the evidence supports her claim. Ragas, 136 F.3d at 458. McGarthy has made several assertions of adverse treatment but has not offered any probative evidence supporting such claims. The Defendant has met the burden of production and the Plaintiff has responded, but, she has failed to establish any evidence that would support an allegation of pretext on FEMA's part. A party may not rely upon "unsubstantiated assertions" as competent summary judgment evidence. Id. Thus, the Plaintiff has failed to establish that she was adversely treated solely as a result of her disability and cannot satisfy the fourth element of a Rehabilitation Act claim.
B. Hostile Environment Discrimination
McGarthy alleges that FEMA subjected her to a hostile work environment based on her disability. Specifically, Plaintiff claims that FEMA's actions in denying her holiday pay and sick leave benefits, in requesting a meeting to discuss her frequent absences from work, in placing false information in her personnel file, and in asking her to relocate from another co-worker's workstation created a hostile and abusive working environment based on her disability.
In Flowers, the Fifth Circuit recognized a right to a disabilities based hostile work environment claim under the Rehabilitation Act. Flowers v. Southern Regional Physician Services, Inc., 247 F.3d 229, 232 (5th Cir. 2001). To establish a prima facie case of disability-based harassment, McGarthy must prove: (1) that she belonged to a protected group (i.e., that she is disabled under the ADA); (2) that she was subjected to unwelcome harassment; (3) that the harassment complained of was based solely 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. Id. at 235. Moreover, the disability based harassment must "be sufficiently pervasive or severe to alter the conditions of employment and create an abusive working environment." McConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 558, 563 (5th Cir. 1998).
1. Did McGarthy Belong to a Protected Group?
Persons disabled in accordance with the ADA constitute a protected group insofar as the statute's very intent is to protect those with disabilities from unwelcome and unequal harassment by their co-workers and employers. Delano-Pyle v. Victory County, Tex., 302 F.3d 567, 574 (5th Cir. 2002); see also Rizzo v. Children's World Learning Centers, Inc., 173 F.3d 254, 261 (5th Cir. 1999). McGarthy has established that she suffers from a physical impairment. McGarthy has also established that this physical impairment substantially limits the major life activities of caring for one's self and walking. Therefore, McGarthy has established that she is disabled as it is defined by the ADA and, for summary judgment purposes, the Court will consider her a member of a `protected group.'
2. Was McGarthy Subject to Unwelcome Harassment Based Solely on Her Disability?
McGarthy must provide evidence that she was subjected to unwelcome harassment and that the harassment complained of was based solely on her disability in order to satisfy the second and third elements of a hostile environment claim. Flowers, 247 F.3d at 235. A hostile environment occurs "[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and creates an abusive working environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). In determining whether a workplace environment is abusive the Court must consider the entirety of the evidence including "the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance." Flowers, 247 F.3d at 236 (quoting Shepard v. Comptroller of Public Accounts, 168 F.3d 871, 874 (5th Cir. 1999)). To be actionable the challenged conduct must be both objectively offensive, meaning that a reasonable person would find it hostile and abusive, and subjectively offensive, meaning that the victim perceived it to be so. Harris, 510 U.S. at 21-22.
McGarthy alleges discrimination based on her disability because she was not granted holiday double pay benefits on Columbus Day, October 9, 2000, or four hours of paid sick leave on October 10, 2000. (Pl.'s Resp. To Def.'s Mot. Summ. J. at 9.) Again, mere assertions of a factual dispute unsupported by evidence will not prevent summary judgment. Anderson, 477 U.S. at 248-50. Defendant has offered evidence indicating that FEMA has an established policy that employees who are in intermittent status are not eligible for benefits such as holiday pay or sick leave. (Def.'s App. at 61.) Furthermore, everyone who was deployed at the time in question was kept in intermittent status. (Def.'s App. at 99-100.) Plaintiff cannot rely on unsubstantiated assertions as competent summary judgment evidence and she has failed to provide any evidence to support her claim of disability-based discrimination. Ragas, 136 F.3d at 458.
McGarthy also alleges that FEMA Human Services Supervisor of Registration, Jaye Hendricks, harassed her by counseling her on October 17, 2000 regarding her excessive absences. Mr. Hendricks was not even aware of McGarthy's disability until this meeting. (Def.'s App. at 56.) While there was confusion as to the extent and specific dates of McGarthy's absences, these issues were resolved at this meeting with McGarthy being paid for the two days she deserved. (Def.'s Mot. Summ. J. at 13.) Furthermore, both Hendricks and witness Mary Simpson denied that Hendricks made any disparaging remarks at this meeting concerning absenteeism. (Def.'s App. at 56-57). Hendricks actions are those of a responsible manager trying accommodate a subordinate's schedule issues while minimizing absences and do not rise to the level of discriminatory harassment.
McGarthy also alleges that Mr. Hendricks put false information in her personnel file. The note in McGarthy's file reads: "Ms. McGarthy requested an early release and has contacted the EEO officer with a complaint that included making racial comments and making fun of her disability." (Def.'s App. at 115). The information contained in this note is an accurate representation of McGarthy's EEO complaint and she does not allege otherwise, despite her claim of false information being put in her file. Furthermore, there is no indication that this file was seen by anyone other than her managers and the EEOC office. It is FEMA policy that such personnel files be maintained for every employee in order to write performance evaluations. (Def.'s App. at 66). Accordingly, Hendricks actions in noting McGarthy's complaint in her confidential personnel file does not rise to the level of discriminatory harassment.
On October 31, 2000, McGarthy alleges that management officials harassed her by asking her to switch workstations so that another employee could sit where McGarthy had been sitting that morning. (Pl.'s Resp. to Def.'s Mot. Summ. J. at 10). Again, McGarthy does not allege that management made any remarks pertaining to her disability. There was an open seating arrangement at the center, although employees could claim a certain seat by leaving a name tag or personnel belongings on that workstation. Furthermore, supervisors could assign seats to individuals with performance problems. (Def.'s App. at 96). McGarthy points to the statement of FEMA Call Center Manager Lockhart as proof that she asked to move in light of her manager's lack of memory concerning the event in question. Lockhart does, indeed, acknowledge the request for McGarthy to change her seat, but, she also attests to the fact that the workstation had been claimed by another employee by placing her name tag there. (Def.'s App. at 96). Merely asking an employee to honor the wishes of another employee who had claimed a workstation earlier in the day, without any further action or disparaging commentary, cannot by any reasonable analysis rise to the level of discriminatory harassment. As a result, McGarthy has failed to establish that she was subject to unwelcome harassment or that the alleged harassment was in any way based upon her disability. Therefore, McGarthy has failed to establish the second and third elements of a disabilities based hostile work environment claim.
3. Assuming Arguendo that McGarthy was Harassed, Did the Harassment Complained of Affect a Term, Condition, or Privilege of Employment?
Even if the Court were to assume arguendo that McGarthy was harassed, to establish the fourth element of a disability-based hostile work environment claim she must show that the complained of harassment was sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment. Jones v. Flagship Int'l, 793 F.2d 714, 720-721 (5th Cir. 1986). "For . . . harassment to be actionable, it must be sufficiently severe or pervasive to alter the conditions of [Plaintiff's] employment and create an abusive working environment." Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (internal quotations omitted). The Court looks at the following circumstances to determine whether the harassment was severe enough to alter conditions of Plaintiff's employment: "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employees work performance." Harris v. Forklift Sys., 510 U.S. 17, 23 (1993). "A recurring point in [Supreme Court] opinions is that simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment." Faragher, 524 U.S. 775, 788 (1998).
McGarthy has not alleged sufficiently pervasive disability-based harassment so as to state a claim worthy of surviving summary judgment. Even if the Court assumes everything McGarthy claims is true, the actions taken by her supervisors at FEMA would not be sufficient as a matter of law to establish a claim of hostile environment harassment. See McConathy, 131 F.3d at 564.
McGarthy claims to have been harassed and discriminated against by being denied holiday and sick pay, by being counseled on her excessive absenteeism, by having a note placed in her personnel file concerning on ongoing EEO complaint, and by being asked to change workstations. Conduct must be extreme to amount to a change in the terms and conditions of employment. Faragher v. City of Boca Raton, 524 U.S. 775 (1998). Only conduct that is so severe and pervasive that it destroys a protected classmember's opportunity to succeed in the workplace is barred. DeAngelis V. El Paso Mun. Police Officers Ass'n, 51 F.3d 591, 593 (5th Cir. 1995). FEMAs alleged adverse actions did not amount to a change in the terms and conditions of McGarthy's employment for they did little if nothing to bar Plaintiff's opportunity to succeed in the workplace. Accordingly, these actions cannot be considered evidence of a hostile work environment and McGarthy has failed to establish the fourth element of her claim.
4. Did FEMA Know, or Should it Have Known, of the Alleged Harassment and Did it Fail to Take Remedial Action?
McGarthy's managers were not aware of her disability until the meeting regarding excessive absences was requested on October 17, 2000. (Def.'s App. at 56.) In fact, only Ms. Lockhart was aware that McGarthy had classified herself as disabled in 1992, but stated that unless McGarthy asked for special accommodation, no one else would have that knowledge. (Df.'s App. at 94-95). After FEMA accommodated McGarthy's request for a scheduling change, McGarthy alleges that she told Supervisor Trigg that she wished her schedule would stay the same so that she could attend college and help her elderly mother. (Def.'s App. at 46). Because McGarthy did not inform FEMA that she was disabled, or ask for a work schedule to accommodate her disability until October 26, 2000, she cannot sustain a claim that FEMA failed to accommodate her until that time. In addition, there is no evidence of McGarthy being subjected to harassment based on her disability and, thus, FEMA could have no knowledge of that which did not occur. Thus, McGarthy has failed to establish the fifth element of a disability-based hostile work environment claim.
CONCLUSION
For the reasons set forth above, the Court GRANTS Defendant's Motion for Summary Judgment.
IT IS SO ORDERED.