Holland Phillips Sep. 26, 2013, 4:17pm

NEW ORLEANS—The U.S. Court of Appeals for the Fifth Circuit partly affirmed and partly vacated a district court’s decision on a woman’s claims that her employer violated the Americans with Disabilities Act (ADA) and fired her for filing charges with the U. S. Equal Employment Opportunity Commission.

The plaintiff in the case is former Assistant Attorney General Pauline G. Feist.

The defendant is the Office of the Attorney General in the Louisiana Department of Justice (LDOJ).

Feist’s original suit alleges that the LDOJ discriminated against her by refusing to provide free, on-site parking for her and in so doing violated the ADA. Feist also alleges that the LDOJ had no grounds to terminate her employment and did so only in retaliation to her charges against them.

A district court granted summary judgment on the discrimination claim and on the retaliation claim in favor of the defendant. According to the district court’s ruling, Feist had an obligation to explain how the denial of on-site parking negatively affected her ability to perform the “essential functions” of her job, which she did not do. Moreover, as she could not produce any evidence that the justification supplied for her termination was only a pretext to obscure their desire for reprisal, that claim was also dismissed.

Both parties confirm that the LDOJ was aware of the plaintiff’s qualified status as disabled for osteoarthritis of the knee. A failure-to-accommodate claim in an ADA discrimination suit places the burden on the plaintiff to further prove that the employer failed to make reasonable accommodations for those known limitations.

Feist appealed on the grounds that according to the ADA, “reasonable accommodations are not restricted to modifications that enable performance of essential job functions.”

The appeals court vacated the district court’s ruling because the allotment of a reserved parking space would have presumably fulfilled the ADA’s definition of reasonable accommodation in making “existing facilities used by employees readily accessible to and usable by individuals with disabilities.” However, the appeals judges declined to express an opinion as to whether the proposed accommodation was reasonable for want of further proceedings.

A retaliation case filed under the ADA or Title VII necessitates that the plaintiff show she participated in a protected activity, that her employer took an adverse action against her, and that there is a causal connection between the protected activity and the adverse action.

Feist established the first two burdens of proof; however, she failed to establish evidence that her termination was caused by her protected action against her employer, the court ruled. This could have been accomplished “by showing that the adverse action would not have occurred ‘but for’ the employer’s retaliatory move," the court held. A temporal proximity of up to five months (determined by previous 5th Circuit Court rulings) between the protected activity and the adverse action may also have been accepted in the absence of other proof.

The LDOJ was able to demonstrate that there exists a legitimate, non-retaliatory reason for its decision. They presented evidence that Feist’s job performance resulted in a negative settlement against the LDOJ in the amount of $500,000 for her failure to disclose information that might have enabled a settlement. They also presented precedence for terminating employees with similar poor job performance, successfully voiding Feist’s arguments.

Circuit Judges presiding over this appeal were W. Eugene Davis, Edith H. Jones and Fortunato Benavides.

Case no. 2012-031065.

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