Putnam v. Blue Sprig

Memorandum Opinion and Order – Page 1
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
GRANT PUTNAM, 	§
§
Plaintiff, 	§
§
v. 	§ 	Civil Action No. 3:24-CV-1657-L
§
BLUE SPRIG PEDIATRICS, INC., 	§
§
Defendant. 	§
MEMORANDUM OPINION AND ORDER
Before the court are the following motions: Defendant’s Motion for Summary Judgment
(Doc. 19), filed July 21, 2025; and Plaintiff’s Motion for Leave to File Surreply (Doc. 23), filed
August 27, 2025. Defendant’s Motion for Summary Judgment only addresses Plaintiff’s claims
for alleged violations of the Americans with Disabilities Act (“ADA”), and should have been
filed as a motion for partial summary judgment. For the reasons herein explained, the court
grants Defendant’s Motion for Summary Judgment (Doc. 19); denies Plaintiff’s Motion for Leave
to File Surreply (Doc. 23); dismisses with prejudice Plaintiff’s ADA claims; and declines to
exercise supplemental jurisdiction over any state law claims that Plaintiff intended to bring in this
action under the Texas Labor Code.
I. 	Factual and Procedural Background
Grant Putnam (“Plaintiff” or “Mr. Putnam”) brought this employment action against his
former employer Blue Sprig Pediatrics, Inc. (“Defendant” or “Blue Sprig”) on July 1, 2024. Mr.
Putnam alleges that Blue Sprig violated the ADA, 42 U.S.C. §§ 12101, et seq., and its State of
Texas equivalent, Tex. Lab. Code § 21.051, et seq. by: (1) discriminating against him based on his
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disability and failing to provide him with a reasonable accommodation; (2) exposing him to a
hostile work environment; and (3) retaliating against him after he resigned.1
Mr. Putnam, who was diagnosed with Asperger’s Syndrome in 2016 at the age of 32, was
hired as a Registered Behavioral Therapist or Technician (“RBT”) in early June 2021 on an at-will
basis by Blue Sprig, which provides applied behavioral analysis and therapy to young children
with autism. When he applied to work for Blue Sprig, Mr. Putnam disclosed to Blue Sprig Clinical
Director Lyssa Rae Miller and Operations Manager Anusha Sadruddin that he had autism. 	Mr.
Putnam did not request any specific type of accommodation for his condition at that time but
indicated that he might need some additional supervision and help in the form of adjustments
during the training process. 	Despite his condition, Mr. Putnam believed that he could use his
experience as someone living with autism or Asperger’s to help improve the lives of children with
autism.
Before interacting with any of the children at Blue Sprig, Mr. Putnam was required to
complete approximately 20 to 25 hours of in-home training that consisted of viewing slide shows
and completing quizzes on the internet. He then submitted paperwork to Blue Sprig, confirming
that he had completed this portion of his training. Successful completion of this in-home training
was a prerequisite for Mr. Putnam to obtain his RBT certification, which could only be
accomplished through the sponsorship of an employer like Blue Sprig. 	Obtaining his RBT
certification within 45 days from his start date (and maintaining his RBT certification) was one of
1 Plaintiff only references the Texas Labor Code once in passing in the section of his Complaint dealing with
jurisdiction, venue, and service of process. In this regard, he alleges: “This Court has federal jurisdiction under 28
U.S.C. § 1331, et seq., because the claims brought herein arise under the Americans with Disabilities Act, 42 U.S.C.
§§ 12101, et seq., and its State of Texas equivalent, Tex. Lab. Code § 21.051, et seq. (‘the Statutes” or ‘ADA’).” Doc.
1 ¶ 2.1. In actuality, the court, as herein explained, has original jurisdiction over Plaintiff’s ADA claims and
supplemental jurisdiction over any state law claims asserted by him in this action. The basis for any such state claims,
though, is not clear because, as noted, Plaintiff’s Complaint only references the Texas Labor Code once in the section
of his Complaint dealing with jurisdiction, venue, and service of process.
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the conditions of Mr. Putnam’s continued employment at Blue Sprig. According to the
employment offer letter from Ms. Sadruddin to Mr. Putnam dated June 4, 2021:
The Company [Blue Sprig] will pay for your training and the actual BACB
[the Behavioral Analysis Certification Board] assessment to become an RBT. You
will have 45 days from your start date to complete this RBT training, take and pass
the RBT competency assessment administered by your supervising BCBA, and
take and pass the RBT exam administered by the BACB. If the exam is not taken
or passed within 45 days of your start date and you are not meeting attendance or
other requirements of The Company, there is a high probability that significant
hours will not be available until the exam is passed and The Company requirements
are met, or employment may be ended.
. . . Training is considered “complete” once you have completed and passed our
internal competency assessment.
Def.’s App. 32-33. Mr. Putnam’s June 4, 2021 electronic signature accepting the offer of
employment appears in the bottom footer of the offer letter. See id.
On June 12, 2021, after completing the in-home portion of his training, Mr. Putnam began
the next phase of his training that involved shadowing Ms. Miller during therapy sessions with
children at Blue Sprig. 	Mr. Putnam shadowed Ms. Miller during two therapy sessions with a
seven-year-old child before working alone with the child on July 2, 2021. After his solo session
with this child, Mr. Putnam sent the following text message to Ms. Sadruddin: “[I] don’t think [I]
am doing [the seven-year-old child] again without his mom being present.” Def.’s App. 42. Mr.
Putnam followed up with an e-mail to Ms. Sadruddin, stating the same thing. In response to Ms.
Sadruddin’s request for “more details,” Mr. Putnam explained that he had attempted to use certain
behavior techniques to no avail with the child, and he expressed the view that “I think there could
be a motivation [on the child’s part] to follow instructions with mom present.” Def.’s App. 43-44.
After this, Blue Sprig removed the seven-year-old child from Mr. Putnam’s schedule while
Ms. Miller was on vacation. When Ms. Miller returned from vacation, she put the seven-year-old
child back on Mr. Putnam’s schedule, starting on July 19, 2021, but she told him that she would
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accompany him during the sessions with this child until he was ready to do them alone. Thereafter,
Ms. Miller accompanied Mr. Putnam during every session with the child, but she left early on July
22, 2021, with approximately forty-five minutes of the session remaining.
When Ms. Miller left, the child was calm and behaving quietly, and another therapist and
child were in the room. After approximately five or ten minutes, the child’s “tone” changed, and
he began acting out by attempting to grab an iPad from the other child in the room. Def.’s App.
20-21. Mr. Putnam intervened and removed the iPad from the seven-year-old’s grasp. The child
then dropped to the floor and began crying, to which Mr. Putnam responded: “I’ll give you
something to cry about.” Def.’s App. 21. The other therapist came over and tried to help. When
the seven-year-old began running towards the other child, Mr. Putnam put his arms out to block
him. The seven-year-old came into contact with Mr. Putnam’s hand, stumbled backwards, and fell
to the ground. Mr. Putnam then picked the child up, took him to get his lunchbox, and walked him
out of the room to his mother.
Immediately after this, Mr. Putnam gathered his own personal belongings and exited the
building. As he was walking out, he passed Operations Manager Reiley Denton and another
employee and stated: “See you later, this is my last day.” Def.’s App. 4-5, 46-49. He did not speak
with anyone else between the time he took the child to his mother and when he announced his
resignation. Later that evening, Mr. Putnam spoke on the telephone with Ms. Miller, told her that
he “strongly disliked” the seven-year-old child, admitted to telling the child that he would give
him something to cry about, and said that he was “[s]orry it had to end this way.” Def.’s App. 4.
Approximately one week later, in response to a request by Blue Sprig, Mr. Putnam confirmed in
writing that he had resigned on July 22, 2021. Def.’s App. 5. Mr. Putnam concedes that he was
not disciplined or terminated as a result of the July 22, 2021 incident, but he takes issue with Blue
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Sprig’s decision to report the incident to the BACB, and he disagrees that Blue Sprig was required
by state law to report such incidents to the BACB.
As indicated, Mr. Putnam sued Blue Sprig approximately three years after the July 22,
2021 incident and his resignation. His ADA claims fall into three main categories: (1)
discrimination based on failure to accommodate; (2) harassment-based discrimination, the ADA
equivalent of a hostile work environment under Title VII; and (3) retaliation. On July 21, 2025,
Blue Sprig moved for summary judgment on all of Mr. Putnam’s ADA claims. 	On August 27,
2025, approximately one week after briefing on Blue Sprig’s Motion for Summary Judgment was
complete, Mr. Putnam sought leave to file a surreply to Blue Sprig’s summary judgment motion.
For the reasons that follow, the court grants Defendant’s Motion for Summary Judgment
(Doc. 19) and denies Plaintiff’s Motion for Leave to file Surreply (Doc. 23). 	Assuming that
Plaintiff intended to assert similar employment law claims under Texas law, the court declines to
exercise supplemental jurisdiction over such claims.
II. 	Defendant’s Motion for Summary Judgment (Doc. 19)
A. Summary Judgment Standard
Summary judgment shall be granted when the record shows that there is no genuine dispute
as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas
Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is “genuine”
if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary
judgment, the court is required to view all facts and inferences in the light most favorable to the
nonmoving party and resolve all disputed facts in favor of the nonmoving party. 	Boudreaux v.
Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005). 	Further, a court “may not make
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credibility determinations or weigh the evidence” in ruling on a motion for summary judgment.
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-
55.
Once the moving party has made an initial showing that there is no evidence to support the
nonmoving party’s case, the party opposing the motion must come forward with competent
summary judgment evidence of the existence of a genuine dispute of material fact. 	Matsushita
Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). 	On the other hand, “if the movant
bears the burden of proof on an issue, either because he is the plaintiff or as a defendant he is
asserting an affirmative defense, he must establish beyond peradventure all of the essential
elements of the claim or defense to warrant judgment in his favor.” Fontenot v. Upjohn Co., 780
F.2d 1190, 1194 (5th Cir. 1986) (emphasis in original). “[When] the record taken as a whole could
not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine [dispute] for
trial.’” 	Matsushita, 475 U.S. at 587. 	(citation omitted). 	Mere conclusory allegations are not
competent summary judgment evidence, and thus are insufficient to defeat a motion for summary
judgment. 	Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). 	Unsubstantiated assertions,
improbable inferences, and unsupported speculation are not competent summary judgment
evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994).
The party opposing summary judgment is required to identify specific evidence in the
record and to articulate the precise manner in which that evidence supports his or her claim. Ragas,
136 F.3d at 458. Rule 56 does not impose a duty on the court to “sift through the record in search
of evidence” to support the nonmovant’s opposition to the motion for summary judgment. Id.; see
also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n.7 (5th Cir. 1992). “Only disputes
over facts that might affect the outcome of the suit under the governing laws will properly preclude
the entry of summary judgment.” 	Anderson, 477 U.S. at 248. 	Disputed fact issues that are
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“irrelevant and unnecessary” will not be considered by a court in ruling on a summary judgment
motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence
of an element essential to its case and on which it will bear the burden of proof at trial, summary
judgment must be granted. Celotex, 477 U.S. at 322-23.
B. 	Discussion
As noted, Blue Sprig contends that it is entitled to summary judgment on all of Plaintiff’s
claims under the ADA. Plaintiff disagrees and contends that the following “uncontroverted facts”
taken from his deposition testimony and his sworn responses to interrogatories are sufficient to
raise a genuine dispute of material fact with respect to each of his ADA claims:
1. 	Plaintiff was diagnosed [with] Asperger’s Syndrome in 2016[] (Pl.[’s] Dep[.]
35:7-37:8)[;]
2. 	With full knowledge of Plaintiff’s Asperger’s condition, Plaintiff was offered a
position as a[n] RBT and hired by Blue Sprig on or about June 4, 2021[] (Pl.[’s]
Dep[.] 10:23-11:9)[;]
3. 	After about a week of in-home training, Plaintiff began working at a Blue Sprig
center on or about June 12, 2021[] (Pl.[’s] Dep[.] 8:4-12)[;]
4. 	Just prior to July 2, 2021, Plaintiff shadowed [Clinical Director Lyssa Rae]
Miller with a particular child who was “about seven” years old . . . for two
sessions, then worked with the child alone for one session[] (Pl.[’s] Dep[.] 47:9-
48:4)[;]
5. 	Plaintiff sent a text and follow-up email on July 2, 2021 to Ms. [Anusha]
Sadruddin, stating “I don’t think I am doing [the seven-year-old child] again
without his mom.” (Pl.[’s] Dep[.] 43:22-44:21)[;]
6. 	Blue Sprig then took the seven-year[-]old off Plaintiff’s schedule[] (Pl.[’s]
Dep[.] 52:22-53:4)[;]
7. 	Ms. Miller put the seven-year-old child back on Plaintiff’s schedule starting
July 19, 2021, but stated that she would attend the sessions with Plaintiff until
he was ready to do [the child] alone[] (Pl.[’s] Dep[.] 53:6-54:4)[;]
8. 	Ms. Miller did attend every session with the seven[-]year-old child with
Plaintiff but left with about 45 minutes left in a session on July 22, 2024. [Ms.]
Miller had to leave early with 45 minutes remaining.[] At the time she left, the
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child was calm. After another five or ten minutes of calm behavior, the child’s
“tone” changed and he began acting out[.] The child attempted to grab an iPad
from another child and Plaintiff intervened, taking the iPad out of the seven[-
]year-old child’s grasp[] (Pl.[’s] Dep[.] 54:12-79: 1)[;]
9. 	After the child fell, Plaintiff resigned[] (Pl.[’s] Dep[.] 90:2-10)[;]
10. Plaintiff spoke with Ms. Miller that night on the phone and confirmed what he
said to Ms. Denton and that he resigned, adding that he was thankful for the
opportunity and was “sorry it had to end this way[]” (Pl.[’s] Dep[.] 13:13-25)[;]
11. Blue Sprig reported the incident with the seven[-]year-old child to the
appropriate government agencies and the Behavioral Analysis Certification
Board (BACB)[] (Pl.[’s] Dep[.] 86:10-89:16)[;]
. . . .
12. Plaintiff’s impairment is fully described in his Interrogatories 1, 2 and 3[([p]p[.]
1-3);]
13. Plaintiff requested a disability accommodation from Defendant [(See Interrog[.]
No. 4, p[.]3); and]
14. Defendant created a hostile work environment and engaged in unlawful
retaliation such that Plaintiff was the victim of a constructive discharge causing
him to resign [(See Interrog[.] No[.] 6, 7, 8, 10, 12, 14 pp[.]4-l l)].
Doc. 20 at 10 (cleaned up).2
Plaintiff’s thirteenth and fourteenth “uncontroverted facts” are actually conclusory legal
conclusions that go to the heart of the parties’ arguments, which the court addresses below.
Because Plaintiff failed to comply with this district’s Local Civil Rules for summary judgment
briefing and evidence, the court had difficulty locating Plaintiff’s evidence in the summary
judgment record. In addition, it was not always apparent to the court which evidence Plaintiff was
relying on because he does not identify which of the evidence referenced above supports each of
his various arguments and claims, and, as reflected above, some of his citations to the summary
2 Because Plaintiff’s Response does not include page numbers at the bottom of each page, the court’s citations are to
the electronic pages assigned to each page of the Response in the header of the document.
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judgment record, particularly those pertaining to interrogatories, are quite broad. In any event, it
is not incumbent on the court to sift through the record to find evidence supporting Plaintiff’s
opposition to Defendant’s Motion for Summary Judgment. Ragas, 136 F.3d at 458; Skotak, 953
F.2d at 915-16 & n.7. With this in mind, the court addresses the parties’ arguments regarding each
of Plaintiff’s ADA claims.
1. 	ADA Discrimination (Failure to Accommodate)
Plaintiff’s claim for ADA discrimination is based on his allegation that Blue Sprig
“violated the ADA by intentionally discriminating against [him] based on his disability by
unlawful harassment and failure to provide [him] with the reasonable accommodation Defendant
once provided.” Doc. 1 ¶ 5.4.
The ADA 	prohibits 	covered 	employers 	from 	“discriminat[ing] 	against 	a qualified
individual on the basis of disability.” 42 U.S.C. § 12112(a). Discrimination includes failure to
make “reasonable accommodations to the known physical or mental limitations of an otherwise
qualified individual with a disability . . . unless such covered entity can demonstrate that the
accommodation would impose an undue hardship.” Id. § 12112(b)(5)(A). To prevail on a failure-
to-accommodate claim under the ADA, the plaintiff must establish that: “(1) [he or she] is a
qualified individual with a disability; (2) the disability and its consequential limitations were
known by the covered employer; and (3) the employer failed to make reasonable accommodations
for such known limitations.” Weber v. BNSF R.R. Co., 989 F.3d 320, 323 (5th Cir. 2021) (footnote
and citation omitted).
Regarding the second and third elements, the Fifth Circuit in Taylor v. Principal Finance
Group, Incorporated distinguished between an employer’s knowledge of an employee’s disability
and an employer’s knowledge of the employee’s limitations resulting from that disability and
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explained that the focus should be on the limitation rather than the disability itself, particularly
when dealing with mental disabilities:
For purposes of proving ADA discrimination, it is important to distinguish
between 	an 	employer’s 	knowledge 	of 	an 	employee’s 	disability 	versus 	an
employer’s knowledge of any limitations experienced by the employee as a result
of that disability. This distinction is important because the ADA requires employers
to reasonably accommodate limitations, not disabilities. “The determination of
whether an individual has a disability is not necessarily based on the name or
diagnosis of the impairment the person has, but rather on the effect of that
impairment on the life of the individual.” 29 C.F.R. 1630.2(j), App. (1995); 42
U.S.C. § 12112(a)(5)(A) (“[T]he term ‘discriminate’ includes . . . not making
reasonable accommodations to the known physical or mental limitations of an
otherwise qualified individual with a disability. . . .”) (emphasis added); 29 C.F.R.
1630.9, 	App. 	(1995) 	(“Employers 	are 	obligated 	to 	make 	reasonable
accommodations only to the physical or mental limitations resulting from the
disability that is known to the employer.”) (emphasis added).
. . . .
Whe[n] the disability, resulting limitations, and necessary reasonable
accommodations, are not open, obvious, and apparent to the employer, as is
often the case when mental disabilities are involved, the initial burden rests
primarily upon the employee, or his health-care provider, to specifically
identify the disability and resulting limitations, and to suggest the reasonable
accommodations. It simply stands to reason that the employee and his health-
care provider are best positioned to know what type of accommodation is
appropriate for the employee. When the nature of the disability, resulting
limitations, and necessary accommodations are uniquely within the knowledge
of the employee and his health-care provider, a disabled employee cannot
remain silent and expect his employer to bear the initial burden of identifying
the need for, and suggesting, an appropriate accommodation. When dealing in
the amorphous world of mental disability, we conclude that health-care providers
are best positioned to diagnose an employee’s disabilities, limitations, and possible
accommodations.
93 F.3d 155, 164-65 (5th Cir. 1996) (emphasis added).
Blue Sprig contends that there is no evidence in this case that Plaintiff requested an
accommodation or made any limitations resulting from his disability known to Blue Sprig.
Plaintiff disagrees and argues that: “[he] informed Defendant of his Asperger[’]s diagnosis during
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his interview and later requested that the child[’]s mother be present during sessions to mitigate
safety concerns and facilitate effective therapy.” Doc. 21 at 6.
Plaintiff does not identify the evidence that he believes supports this assertion as required
by this District’s Local Civil Rules for summary judgment briefing. It appears, however, that
Plaintiff is relying on the following statement in his summary judgment response: “Plaintiff sent a
text and follow-up email on July 2, 2021 to Ms. Sadruddin, stating ‘I don’t think I am doing [the
seven-year-old child] again without his mom.’” Doc. 21 at 3 (quoting “Pl.[’s] Dep[.] 43:22-44:21).
He also states in his sworn answer to Defendant’s Interrogatory No. 4 as follows:
ANSWER:
Regarding my autism spectrum disorder, I requested the following accommodation-
On Friday, July 2, 2021, I requested assistance with a violent c[hild] to administer
their session successfully. This request was made because of the extreme behavior
of the client. The c[hild] had previously punched my BCBA supervisor, vandalized
others[’]s possessions, and hit and kicked me multiple times. During my time there,
I observed no other c[hild] that engaged in as many violent actions as the c[hild] I
was working with. There were also no other c[hildren] that I observed engaging in
vandalism. Blue Sprig assigned me this c[hild] on my third day of working as an
RBT.
Doc. 21 at 12.
Assuming that Blue Sprig was aware of Mr. Putnam’s Asperger’s disability, the evidence
relied on by Plaintiff is insufficient to raise a genuine dispute of material fact as to whether he
requested an accommodation because of his disability or whether Blue Sprig was aware of his
limitations resulting from such disability. Plaintiff’s statement—“I don’t think I am doing [the
seven-year-old child] again without his mom”—does not qualify as a request. 	Doc. 21 at 3
(quoting “Pl.[’s] Dep[.] 43:22-44:21). Even assuming that it does, Plaintiff acknowledges that he
made this statement or request “because of the extreme behavior of the client,” not because of any
specific limitation resulting from his disability. Thus, a reasonable jury could not infer from this
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that Blue Sprig was aware of Mr. Putnam’s disability limitations or the need for an accommodation
to address any such limitations.
Plaintiff’s subsequent e-mail to Ms. Sadruddin regarding this statement—in which he
explained that he had attempted to use certain behavior techniques to no avail with the child, and
he expressed the view that “I think there could be a motivation [on the child’s part] to follow
instructions with mom present”—lends further support to the conclusion that this statement was
not made to notify Blue Sprig of any specific limitation resulting from his disability or to request
a reasonable and appropriate accommodation. 	Def.’s App. 43-45; see also Def.’s App. 12-14.
Thus, although Plaintiff contends in his interrogatory response—that he “requested the following
accommodation[:] On Friday, July 2, 2021, I requested assistance with a violent client to
administer their session successfully—there is no evidence that this request for assistance included
a request to not work with this particular child anymore or a request for assistance in the form of
additional training or supervision with respect to this child because of a disability limitation.
Accordingly, regardless of whether Plaintiff’s intent was to request such an accommodation, the
manner in which he expressed any such intent was not sufficiently specific to meet his burden
under Taylor and apprise his employer that an accommodation was being requested to address a
disability limitation.
Further, considering the discreet nature of Mr. Putnam’s alleged mental disability, the
specific limitations resulting from such disability and any accommodation he needed were
uniquely within his knowledge. 	See Taylor, 93 F.3d at 164-65. It was, therefore, incumbent on
him to come forward and identify such limitations, and to suggest to Blue Sprig appropriate and
reasonable accommodations. Id. In the absence of evidence in this regard, the same knowledge
cannot be attributed to his former employer Blue Sprig, and Mr. Putnam’s statement or request
that “I don’t think I am doing [the seven-year-old child] again without his mom” was insufficient
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to put Blue Sprig on notice of any such limitation or the type of reasonable accommodation Mr.
Putnam needed to perform his duties as an RBT. Id. Likewise, this statement or request by him
was far too vague to notify Blue Sprig that an accommodation or ongoing accommodation with
respect to the child in question was needed because of any known limitations attributable to his
mental disability. Id. As Plaintiff has failed to raise a genuine dispute of material fact regarding
the second and third elements of his discrimination claim under the ADA based on failure-to-
accommodate, Blue Sprig is entitled to judgment as a matter of law on this claim, which will be
dismissed with prejudice.
2. 	Hostile Work Environment or ADA Harassment-Based Discrimination
In 	addition 	to 	contending 	that 	Blue 	Sprig 	“violated 	the 	ADA 	by 	intentionally
discriminating against [him] based on his disability by unlawful harassment,” Plaintiff contends
that he was exposed to a hostile work environment and was “consequently . . . forced to quit.”
Doc. 1 ¶¶ 4.4, 5.4-5.7. 	Although the parties’ summary judgment briefing addresses these as
separate claims, presumably because they were pleaded in this manner, the court addresses their
contentions regarding harassment-based discrimination and hostile work environment under the
ADA together, as the legal standard for both is the same.
a. 	Applicable Legal Standard
The ADA prohibits harassment due to disability. See Flowers v. Southern Reg’l Physician
Servs. Inc., 247 F.3d 229, 234-35 (5th Cir. 2001). In Flowers, the Fifth Circuit officially recognized
the viability of disability-based harassment claims under the ADA, reasoning that,
[b]ecause Title VII has been extended to hostile work environment claims [and
Title VII and the ADA are similar in their language, purposes, and remedial
structures], we follow the growing consensus that our harassment jurisprudence be
extended to claims of disability-based harassment. As such, we find that a cause of
action for disability-based harassment is viable under the ADA.
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Id. 	Because of the similarity between ADA disability-based harassment claims and claims for
hostile work environment under Title VII, ADA disability-based harassment claims are “modeled
after” Title VII hostile work environment claims. See id. at 235 (citing McConathy v. Dr.
Pepper/Seven Up Corp., 131 F.3d 558, 563 (5th Cir. 1998)). Thus, whether referred to as a
disability-based harassment claim or a hostile work environment claim, the elements for such
claims under the ADA are the same as those for hostile work environment claims under Title VII.
See Flowers, 247 F.3d at 235 (citation omitted).
To prevail on a claim of disability-based harassment or hostile work environment under
the ADA, the plaintiff must prove that:
(1) that [he or] she belongs to a protected group; (2) that [he or] she was subjected to
unwelcome harassment; (3) that the harassment complained of was based on [his or] 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 235-36 (citing McConathy, 131 F.3d at 563). The harassment alleged by a plaintiff “must
be sufficiently pervasive or severe to alter the conditions of employment and create an abusive
working environment.” Flowers, 247 F.3d at 236 (quotation marks omitted). “Whether an
environment is hostile or abusive depends on the totality of the circumstances,” and factors such
as “the frequency of the conduct, its severity, the degree to which the conduct is physically
threatening or humiliating, and the degree to which the conduct unreasonably interferes with an
employee’s work performance” are considered. Alaniz v. Zamora-Quezada, 591 F.3d 761, 771
(5th Cir. 2009). “[I]solated incidents (unless extremely serious) will not amount to discriminatory
changes in the terms and conditions of employment.” Saketkoo v. Administrators of Tulane Educ.
Fund, 31 F.4th 990, 1003 (5th Cir. 2022) (citations omitted).
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Memorandum Opinion and Order – Page 15
b. 	Defendant’s Arguments
Blue Sprig first argues that Mr. Putnam’s harassment-based claim or claims fail because
he cannot satisfy the fourth element—that the harassment complained of affected a term, condition,
or privilege of employment. In this regard, Blue Sprig contends that Mr. Putnam cannot show that
he suffered an adverse employment action given his decision to resign. Alternatively, Blue Sprig
contends that Mr. Putnam cannot show that he was constructively discharged, arguing that:
[he] was not subjected to any severe or pervasive harassment because of his
disability, much less harassment so severe that he had no choice but to resign.
Indeed, Plaintiff did not suffer from any cognizable harassment at all. Furthermore,
Plaintiff did not report any harassment, nor give Blue Sprig an opportunity to
address any of Plaintiff’s alleged concerns. Plaintiff abruptly decided to quit during
the session with the seven[-]year-old child and announced his resignation without
speaking with anyone beforehand. Under Fifth Circuit law, this dooms any
constructive discharge contention, even if Plaintiff could establish a working
environment so intolerable that he had no choice but to quit. Accordingly, Plaintiff
cannot establish a prima facie case of disability discrimination[.]
Doc. 20 at 10 (footnote omitted).
In support of its argument that Plaintiff’s ADA discrimination claim is doomed because of
his abrupt decision to resign before giving Blue Sprig an opportunity to address his concerns,
Defendant asserts:
[A]n employee who resigns before giving his employer a reasonable opportunity to
address his concerns cannot maintain a viable constructive discharge claim. See
Williams v. Barnhill’s Buffet, Inc[.], 290 F[.] App[’]x[] 759, 762, (5th Cir. 2008)
(affirming summary judgment on constructive discharge claim because employee
resigned without affording the employer a reasonable opportunity to address
Plaintiff’s concerns); Haley v. Alliance Compressor LLC, 391 F.3d 644, 652-53
(5th Cir. 2004) (no constructive discharge because a reasonable employee who felt
compelled to resign due to intolerable working conditions would have attempted
resolution of those concerns before quitting); Thompson v. Naphcare, Inc[.], 117
F[.] App[’]x[] 317, 324-25 (5th Cir. 2004) (no constructive discharge claim even if
incidents alleged by Plaintiff created an intolerable work environment because
Plaintiff resigned without affording the employer a reasonable opportunity to
address the Plaintiff’s concerns); Boze v. Branstetter, 912 F.2d 801, 805 (5th Cir.
1990) (same); McKethan v. Texas Farm Bureau, 996 F.2d 734, 741 (5th Cir. 1993);
Harrell v. Orkin, LLC, 876 F. Supp. 2d 695 (E.D. La. 2012) (granting summary
judgment on constructive discharge claim even though plaintiff identified repeated
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Memorandum Opinion and Order – Page 16
harassment but failed to afford the employer an opportunity to address [the]
concerns before resigning).
Doc. 20 at 9.
In addition, Blue Sprig asserts that Plaintiff cannot satisfy the third requirement for his
harassment-based claim or claims because the Fifth Circuit has held that hostile conduct that is not
based on protected status is insufficient to raise a genuine dispute of material fact even when a
plaintiff subjectively believes that discriminatory intent motivated the defendant’s actions. Doc.
20 at 13-14 (citations omitted). Applying this reasoning to Plaintiff’s claim or claims, Blue Sprig
argues that it is entitled to summary judgment because:
The entirety of his “hostile work environment” claim consists of normal
employment activity, none of which had to do with his condition, and hostility
caused by the seven[-]year-old child. Plaintiff contends that his original assignment
to the seven[-]year-old child, his “very little training”, Ms. Miller’s vacation and
expectation that he “successfully administer their program”, the assignment of the
child back to him and Ms. Miller’s 45-minute early departure created a hostile work
environment. (App[]. 19, Pl.[’s] Dep[.] 71[:]13-72:11). He also contends the
behavior of the seven[-]year-old child “was an aspect of” his hostile work
environment. (App[]. 19, 72:24-73:4).
These general workplace activities—unrelated to Plaintiff’s disability—do
not support a hostile work environment claim as a matter of law. Indeed, Plaintiff
knew that he would be working with children with unpredictable and uncontrollable
behavior when he went to work at Blue Sprig, based on his own experience. (App[].
9-12, 17, Pl.[’s] Dep[.], 30:19-43:2; 63:5-65:18). He acknowledged that he did not
have the right to choose who he worked with and may have to work with children
he did not want to. (App[]. 16-17, Pl.[’s] Dep[]. 61:11-63:4). He cannot now say
that being asked to do the very thing that he was hired for was harassment.
It is noteworthy that the individual who Plaintiff claims perpetrated the
harassment (besides the child), Ms. Miller, was the same person who hired him
with knowledge of his Asperger’s and offered to work with him in sessions with
the child until he could handle it on his own. She did work with him [] for all but
the final 45 minutes of a session when she had to leave[] but left when the child
was calm and quiet. Plaintiff even admits that Ms. Miller was trying [to] help him
succeed. (App[]. 18, Pl.[’s] Dep[]. 69:1-15). Any suggestion that Ms. Miller was
trying to create a hostile work environment for Plaintiff is belied by these
undisputed facts.
Doc. 20 at 14-15.
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Memorandum Opinion and Order – Page 17
c. 	Plaintiff’s Responsive Arguments
Plaintiff admits that he resigned but argues that he has presented evidence that he suffered
an adverse employment action because he was constructively discharged. 	Plaintiff also asserts
that he has presented evidence that: (1) the harassment that he suffered was sufficiently severe and
pervasive to alter the conditions of his employment; and (3) Defendant’s actions created an
objectively and subjectively intolerable environment that compelled his resignation. Specifically,
Plaintiff argues that he suffered an adverse employment action because:
Plaintiff[’]s resignation was the result of intolerable working conditions created by
Defendant, constituting constructive discharge. Constructive discharge occurs
when an employer makes working conditions so intolerable that a reasonable
person in the employee’s position would feel compelled to resign. § 11-2 ENDING
THE 	EMPLOYMENT 	RELATIONSHIP, 	Rosalio 	Garcia 	v. 	Department 	of
Agriculture. 1984 EEOPUB LEXIS 387, 84 FEOR (LRP) 20174. EEOC No.
01831493. Plaintiff has provided evidence that Defendant assigned him to work
with a child exhibiting extreme resistance and violent behavior, failed to provide
adequate training or support, and left him unsupervised during a critical session,
despite his known disability and limitations. These actions created an environment
that was objectively and subjectively intolerable, compelling Plaintiff to resign. §
11-2 	ENDING 	THE 	EMPLOYMENT 	RELATIONSHIP, 	Rosalia 	Garcia 	v.
Department of Agriculture. 1984 EEO PUB LEXIS 387, 84 FEOR (LRP) 20174.
EEOC No.01831493.
Doc. 21 at 6 (cleaned up).
In addition, Plaintiff contends that he was subjected to a hostile work environment:
To establish a hostile work environment claim under the ADA, Plaintiff
must show that he was subjected to unwelcome harassment based on his disability,
and that the harassment was sufficiently severe or pervasive to alter the conditions
of his employment. Moss v. Harris Cnty. Constable Precinct One, 851 F.3d 413,
Talk v. Delta Airlines[,] Inc., 165 F.3d 1021. Plaintiff has presented evidence that
Defendant assigned him to work with the most challenging client without adequate
training or support, ignored his requests for accommodations, and left him
unsupervised during a critical session. These actions, combined with the child’s
violent 	behavior, 	created 	a 	hostile 	work 	environment 	that 	interfered 	with
Plaintiff[’]s ability to perform his job. Moss v. Harris Cnty. Constable Precinct
One, 851 F.3d 413, Talk v. Delta Airlines[,] Inc., 165 F.3d 1021.
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Memorandum Opinion and Order – Page 18
Doc. 21 at 7 (cleaned up). 3
d. 	Analysis
To support the aforementioned assertions, most of which are conclusory in nature, it
appears that Plaintiff may be relying on what he refers to in his response as the fourteenth statement
of “uncontroverted facts”: “Defendant created a hostile work environment and engaged in
unlawful retaliation such that Plaintiff was a victim of a constructive discharge causing him to
resign.” Doc. 21 at 5 (citing Pl.’s Interrogs. 6, 7, 8, 10, 12, and 14). Of these cited interrogatory
responses, only his responses to Defendant’s Interrogatory Nos. 8, 12, and 14 appear to be relevant
to his argument that he was forced to resign. Plaintiff’s summary judgment response, however,
does not address Defendant’s argument that his ADA claim based on constructive discharge fails
regardless of whether his working conditions were intolerable because he failed to give his
employer Blue Sprig a reasonable opportunity to address his concerns before resigning. Plaintiff’s
summary judgment response also fails to address Defendant’s argument that his harassment-based
claim or claims fail as a matter of law in light of the Fifth Circuit’s holding that hostile conduct
that is not based on protected status is insufficient to raise a genuine dispute of material fact even
when a plaintiff subjectively believes that discriminatory intent motivated the defendant’s actions.
With respect to constructive discharge claims, the Fifth Circuit in Aryain v. Wal-Mart
Stores, Texas, LP, 534 F.3d 473 (5th Cir. 2008) explained that, “[i]n certain circumstances, a
constructive discharge can be considered a tangible employment action,” and “whether an
employer’s actions constitute a constructive discharge” turns on whether “working conditions
3 Plaintiff’s citations in the first paragraph pertain to EEOC decisions. EEOC decisions are not binding authority but
may be considered persuasive. Price v. Fed. Exp. Corp., 283 F.3d 715, 725 (5th Cir. 2002) (citing Smith v. Universal
Servs., Inc., 454 F.2d 154, 157 (5th Cir. 1972) (noting that civil litigation is “completely separate from the actions of
the EEOC”)).
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Memorandum Opinion and Order – Page 19
[became] so intolerable that a reasonable person in the employee’s position would have felt
compelled to resign.” Id. at 480 (quoting Pennsylvania State Police v. Suders, 542 U.S. 129, 141
& 147 n.8, (2004); and citing McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th Cir. 2007)
(setting forth the same standard)).
In conducting a constructive discharge inquiry, the Fifth Circuit considers whether there is
evidence to support the following six factors:
(1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4)
reassignment 	to 	menial 	or 	degrading 	work; 	(5) 	badgering, 	harassment, 	or
humiliation by the employer calculated to encourage the employee’s resignation;
or (6) offers of early retirement that would make the employee worse off whether
the offer were accepted or not.
Aryain, 534 F.3d 473 at 481 (citation omitted).
Consideration of these factors does not support a finding of constructive discharge here, as
none of these factors is relevant to the working environment described by Mr. Putnam. Instead,
Mr. Putnam’s claim of constructive discharge is based on his assertion that Blue Sprig’s actions—
in “assign[ing] him to work with a child exhibiting extreme resistance and violent behavior”;
“fail[ing] to provide [him with] adequate training or support”; and le[aving] him unsupervised
during 	a critical 	session, 	despite his 	known 	disability 	and 	limitations”—created 	a 	work
environment that was “objectively and subjectively intolerable, compelling [him] to resign.” Doc.
21 at 6. 	As Defendant correctly notes, evidence of “[c]onstructive discharge requires a greater
degree of harassment than required by a hostile environment claim.” Lauderdale v. Texas Dep’t of
Criminal Justice, Instit. Div., 512 F.3d 157, 167 (5th Cir. 2007) (quoting Brown v. Kinney Shoe
Corp., 237 F.3d 556, 566 (5th Cir. 2001)); Woods v. Delta Beverage Grp., Inc., 274 F.3d 295, 301
(5th Cir. 2001) (explaining that constructive discharge requires a “greater severity or pervasiveness
of harassment than the minimum required to prove a hostile work environment claim.”) (citation
omitted).
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Memorandum Opinion and Order – Page 20
Even viewing all facts and inferences in the light most favorable to Mr. Putnam, the totality
of the circumstances and evidence relied on by him do not establish that Blue Sprig’s conduct or
treatment of him with respect to work assignments, supervision, and training was so “pervasive or
severe” as to “create an abusive working environment.” Flowers, 247 F.3d at 236. Stated
differently, the evidence in this case is not sufficiently egregious to raise a genuine issue of material
fact regarding his claim that he was constructively discharged. See, e.g., Aryain, 534 F.3d at 481
(affirming summary judgment on the plaintiff’s constructive discharge claim, concluding that the
plaintiff’s evidence of poor treatment—including her transfer to the infant department that
involved less customer interaction but not a demotion or salary decrease; being assigned to break
down clothing racks that the plaintiff viewed as “punishment,” “menial or degrading work,” and
“tough work [that] . . . only the guys did . . . at night”; being watched by the store manager and the
assistant infant department manager on the security camera while performing part of this task;
having certain requests by her for breaks denied; having a load of clothes knocked out of her hands
one time by the store manager; having to wait outside the store manager’s office for long periods
when she asked to speak to the manager; being the target of angry looks, laughter, and negative
discussion about her by the store manager and the assistant infant department manager; and being
subjected to sexually offensive conduct by her supervisor—did “not reach the level required to
establish a constructive discharge claim” even considering the facts in the light most favorable to
the plaintiff and taking into account the plaintiff’s assertions that her supervisors engaged in such
conduct to force her to resign).4
4 In reaching this conclusion, the court in Aryain relied on Brown v. Bunge Corporation, 207 F.3d 776 (5th Cir. 2000),
in which the Fifth Circuit affirmed the grant of summary judgment on a constructive discharge claim even though the
plaintiff “employee was demoted and given fewer job responsibilities.” Aryain, 534 F.3d at 481 (citing Brown, 207
F.3d at 782-83). Aryain also relied on Stephens v. C.I.T. Group/Equipment Financial, Incorporated, 955 F.2d 1023
(5th Cir. 1992), a case in which the Fifth Circuit affirmed the jury verdict on the plaintiff’s constructive discharge
claim despite evidence that the plaintiff “had been demoted, faced significant reductions in salary and responsibilities,
and was repeatedly asked when he planned to quit.” Aryain, 534 F.3d at 481 (citing Stephens, 955 F.2d at 1027-28).
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Memorandum Opinion and Order – Page 21
Moreover, Plaintiff has not pointed to any evidence to support his assertion that Blue Sprig
failed to provide him with adequate training, and the court has already determined that his evidence
is insufficient to raise a genuine dispute of material fact as to whether Blue Sprig was aware that
he needed a reasonable accommodation of some kind to address a known limitation attributable to
his autism. Even if Plaintiff was unhappy with the way Blue Sprig responded to his alleged request
for accommodation by continuing to assign him to the seven-year-old child and not providing him
with adequate supervision during the last forty-five minutes of the therapy session with this child
on July 22, 2021, the Fifth Circuit has held that a plaintiff’s “disagreement” with an employer
“over terms of employment or an accommodation do[es] not amount to harassment.” Strife v.
Aldine Indep. Sch. Dist., 138 F.4th 237, 248 (2025) (quoting Clark v. Champion Nat’l Sec., Inc.,
952 F.3d 570, 585 (5th Cir. 2020)); see also E.E.O.C. v. Agro Distrib., LLC, 555 F.3d 462, 471
(5th Cir. 2009) (“[t]he ADA provides a right to reasonable accommodation, not to the employee’s
preferred accommodation.”).
Further, this is not a situation in which an employee was required to undertake menial or
difficult tasks that fell well outside of his or her job description or requirements. 	Plaintiff was
aware that he would be working with autistic children who acted unpredictably and had not learned
techniques yet to control their emotions and behavior. 	Def.’s App. 11-12, 16-17. 	He also
acknowledged that he may have to work with children with whom he did not want to work. Id. at
17. Thus, the arguments and evidence relied on by Plaintiff would not support a reasonable jury in
finding that a reasonable person in his shoes would have felt compelled to resign under the
circumstances.
Even assuming that a reasonable jury could find that Mr. Putnam was constructively
discharged, the court agrees with Blue Sprig that his decision to abruptly quit dooms his ADA
claim based on a hostile work environment or harassment-based discrimination. In the constructive
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Memorandum Opinion and Order – Page 22
discharge context, the Fifth Circuit has recognized that “part of an employee’s obligation to be
reasonable is an obligation not to assume the worst, and not to jump to conclusions too fast.” Id.
at 482 (quoting Dornhecker v. Malibu Grand Prix Corp., 828 F.2d 307, 310 (5th Cir.1987)
(quoting Garner v. Wal–Mart Stores, Inc., 807 F.2d 1536, 1539 (11th Cir.1987)). In other words,
the expectation is that a reasonable employee “should pursue less drastic options before choosing
to leave [his or] her job.” Aryain, 534 F.3d 473 at 482 (citing Haley, 391 F.3d at 652).
Like the plaintiff in Aryain, Mr. Putnam did not raise the complaints he now asserts here
before resigning. Instead, it is undisputed that Plaintiff quit suddenly during the session with the
unruly child and, as he was leaving, stated simply—“[s]ee you later, this is my last day”—without
first attempting to discuss his concerns with anyone at Blue Sprig. Def.’s App. 4. The court has
already concluded that Mr. Putnam’s prior statement or request that “I don’t think I am doing [the
seven-year-old child] again without his mom” was insufficient to put Blue Sprig on notice of any
accommodation or limitation resulting from his disability. The court similarly concludes that this
statement was insufficient to apprise Blue Sprig of his concerns about having to work with this
child, the adequacy of his training, or the level of support provided to him. For this reason and
because of Plaintiff’s sudden resignation, Blue Sprig had no opportunity to address his concerns
to improve his situation at work. See Aryain, 534 F.3d 473 at 481-82.
Given the lack of severity of the type of harassment Mr. Putnam claims to have
experienced, a reasonable employee in his shoes experiencing this type of treatment would not
have felt compelled to resign without first reporting the alleged harassment to his supervisors or
someone at Blue Sprig with authority to address the situation. See Woods, 274 F.3d at 301
(affirming summary judgment on the plaintiff’s hostile work environment claim based on
constructive discharge because the type of harassment experienced by the plaintiff did not satisfy
the higher standard required for constructive discharge, and a reasonable woman experiencing such
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Memorandum Opinion and Order – Page 23
harassment would not have felt compelled to resign but instead to report the harassment to her
supervisors).
The court has not found any Fifth Circuit authority or case in this circuit that has addressed
the precise situation presented, that is, how a reasonable, autistic person with Asberger’s in
Plaintiff’s shoes would have reacted, and Plaintiff has not pointed the court to any such authority
or evidence indicating that a reasonable, autistic person with Asberger’s in Plaintiff’s shoes would
have acted differently than a reasonable person without autism or Asberger’s. In any event, because
Mr. Putnam previously attempted to express certain concerns he had about this particular child to
Blue Sprig, albeit inarticulately, the court concludes that a reasonable person in his shoes would
have brought his concerns (about having to work with this child, the adequacy of his training, or
the level of support provided to him) to Blue Sprig’s attention before abruptly resigning without
providing Blue Sprig notice or an opportunity to address what he perceived as harassment, a lack
of training, or an untenable situation. Accordingly, this is yet another reason that Plaintiff’s hostile
work environment or harassment-based discrimination claim under the ADA premised on
constructive discharge fails. 	Additionally, in failing to respond to this argument by Defendant,
Plaintiff waived it.5
5 The Fifth Circuit has held that a litigant’s failure to raise, address, or brief an argument in the district court constitutes
a waiver of that issue on appeal. Fruge v. Amerisure Mut. Ins. Co., 663 F.3d 743, 747 (5th Cir. 2011) (“Failure to raise
an argument before the district court waives that argument” on appeal.); Lookingbill v. Cockrell, 293 F.3d 256, 264
(5th Cir. 2002) (same) (citations omitted); see also Nichols v. Enterasys Networks, Inc., 495 F.3d 185, 190 (5th Cir.
2007) (explaining that inadequately briefed issues are considered waived) (citing Burnley v. City of San Antonio, 470
F.3d 189, n.10 (5th Cir. 2006) (“Burnley also seeks an award of appellate attorney’s fees, but provides neither legal
authority nor evidence in support of such an award. Accordingly, her argument is waived for inadequate briefing.”).
District courts have concluded, by analogy, that the failure to address, brief, or respond to an argument or issue in the
district court also waives that argument or issue in the district court. See, e.g., Magee v. Life Ins. Co. of N. Am., 261
F. Supp. 2d 738, 748 n.10 (S.D. Tex. 2003) (“[F]ailure to brief an argument in the district court waives that argument
in that court”); see also Kellam v. Metrocare Servs., 2013 WL 12093753, at *3 (N.D. Tex. May 31, 2013) (“Generally,
the failure to respond to arguments constitutes abandonment or waiver of the issue.”) (quotation omitted), aff’d, 560
F. App’x 360 (5th Cir. 2014).
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Memorandum Opinion and Order – Page 24
For similar reasons, Plaintiff waived any argument he may have had by not responding to
Defendant’s contention that his hostile work environment or harassment-based claim fails because
it is not based on his protected status, and subjective belief that discriminatory intent may have
motivated the defendant’s alleged actions is insufficient.6 In this regard, Defendant argues as
follows:
The law “does not protect employees from hostile conduct that is not based
on their protected status.” Farpella-Crosby v. Horizon Health Care, 97 F.3d 803,
806 n.2 (5th Cir. 1996). In other words, “[p]oor treatment without more is not
sufficient to show harassment based on [disability], even if [the plaintiff] believes
[disability] to be the motivating factor for the poor treatment.” Eaton-Stephens v.
Grapevine Colleyville Ind. Sch. Dist., 715 F[.] App[’]x[] 351, 356 (5th Cir. 2017)
(per curiam); see Baker v. FedEx Ground Package Sys. Inc., 278 F[.] App[’]x[]
322, 329 (5th Cir. 2008) (per curiam) (finding “inappropriate” comments that were
not “based on race” could not ‘sustain a race-based hostile work environment
claim”). 	This 	includes 	allegedly 	unfair 	assignments, 	micromanagement,
uncomfortable pressure, or being treated as incompetent. See, e.g., Cavalier v.
Clearlake Rehab. Hosp., Inc., 306 F[.] App[’]x[] 104, 107 (5th Cir. 2009) (per
curiam) (emphasis added) (“Though [the plaintiff] may believe that all twelve
incidents were motivated by racial animus, subjective belief of racial motivation,
without more, is not sufficient to show a hostile work environment.”); Ray v.
Tandem Computers, Inc., 63 F.3d 429, 434 (5th Cir. 1995) (“[Plaintiff’s] subjective
belief that discriminatory intent motivated [complained of] actions is insufficient
to establish a material question of fact regarding [defendant’s] motives.”).
Doc. 20 at 13-14 (cleaned up).
As indicated, Defendant further asserts, and the court agrees, that the “normal employment
activity” and “general workplace activities” described by Plaintiff that are “unrelated to [his]
6 In his summary judgment response, Plaintiff contends that Defendant’s assertion that he “failed to provide evidence
linking his disability to the alleged adverse actions” is without merit because he “has presented direct and
circumstantial evidence that Defendant was aware of his disability, failed to provide reasonable accommodations, and
created intolerable working conditions.” Doc. 20 at 8. The factual, legal, and evidentiary basis for this stand-alone,
conclusory argument at the end of Plaintiff’s response, however, is unclear such that, even if not waived for failure to
address Defendant’s argument, the issue was waived because it was not adequately briefed by Plaintiff in accordance
with this district’s Local Civil Rules, and the undersigned declines to speculate on Plaintiff’s behalf with respect to
arguments that have not been sufficiently briefed and developed, or those not accompanied by citations to evidence in
the summary judgment record. See Architectural Granite & Marble, LLC v. Pental, No. 3:20-CV-295-L, 2023 WL
121996, at *4 (N.D. Tex. Jan. 6, 2023) (concluding that an inadequately briefed argument was waived for failure to
comply with applicable Local Civil Rules and noting that the Fifth Circuit applies a similar rule that is derived from
the Federal Rules of Appellate Procedure).
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Memorandum Opinion and Order – Page 25
disability” do not, as a matter of law, support a claim by him based on hostile work environment
or harassment-based discrimination. Moreover, although Mr. Putnam avoided directly answering
questions during his deposition about whether he believed that he had the right to choose the
children with whom he worked and, instead, responded that he thought he “could voice [his]
concern about difficulties [he] was having with an individual [child],” Def.’s App. 16-17, he
acknowledged the possibility of his having to work with a child with whom he did not want to
work while employed by Blue Sprig. 	Id. at 16. 	In any case, the summary judgment record is
devoid of evidence that remotely suggests that the treatment Plaintiff now complains of was based
on his protected status or disability. Thus, this is a separate ground for concluding that Defendant
is entitled to summary judgment as a matter of law on Plaintiff’s claim(s) under the ADA for
hostile work environment and/or disability-based harassment, which will be dismissed with
prejudice.
3. 	ADA Retaliation
Defendant next moves for summary judgment on Plaintiff’s retaliation claim. ADA
retaliation claims under the ADA are assessed according to the same burden-shifting framework
as Title VII claims when, as here, the plaintiff relies on circumstantial evidence. See Nall v. BNSF
Ry. Co., 917 F.3d 335, 348-49 (5th Cir. 2019) (noting in a case involving an ADA retaliation claim
that the well-known burden-shifting analysis in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973), applies when the plaintiff relies only on circumstantial evidence); Feist v. Louisiana,
Dept. of Justice, Office of the Att’y Gen., 730 F.3d 450, 454 (5th Cir. 2013) (applying the same
burden shifting standard in addressing the plaintiff’s retaliation claims under the ADA and Title
VII) (citations omitted).
To establish “unlawful retaliation, a plaintiff must establish a prima facie case of (1)
engagement in an activity protected by the ADA, (2) an adverse employment action, and (3) a
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Memorandum Opinion and Order – Page 26
causal connection between the protected act and the adverse action.” Nall, 917 F.3d at 348-49. If
the plaintiff establishes a prima facie case, the burden shifts to the defendant, who must then come
forward with a “legitimate, non-discriminatory reason” for the adverse action. Id. at 349. The
presentation of such a reason by the defendant shifts the burden back to the plaintiff to “adduce
sufficient evidence the proffered reason is pretext for retaliation.” Id. At this stage, the plaintiff
must show that the adverse action would not have occurred “but for” the plaintiff’s protected
activity. See Pineda v. United Parcel Serv., Inc., 360 F.3d 483, 487 (5th Cir. 2004). The plaintiff
“can establish pretext in the context of retaliation ‘by showing that a discriminatory motive more
likely motivated her employer’s decision.’” Saketkoo, 31 F.4th at 1002 (citations omitted).
In his Complaint, Plaintiff alleges only as follows regarding his retaliation claim: “[He]
reported the discriminatory, retaliatory behavior and the hostile work environment. Despite [his]
complaints regarding such environment, Defendant took no action to remedy the environment.”
Doc. 1 at 5.9. While Plaintiff alleges in the preceding paragraph that he incorporates the allegations
in all prior paragraphs of his Complaint, there are no factual allegations in his pleadings that would
support a retaliation claim that arose after he resigned based on Blue Sprig’s decision to report the
July 22, 2021 incident with the seven-year-old child to the BACB. For the first time in response to
Defendant’s Motion for Summary Judgment, however, Plaintiff asserts that his retaliation claim
under the ADA is based on his contention that Blue Sprig’s decision to report the July 22, 2021
incident with the seven-year-old child to the BACB after he resigned constitutes retaliation because
Blue Sprig was not required by law to report the incident to the BACB, and it reported the incident
to harm his professional reputation. Doc. 21 at 8.
As Plaintiff does not mention or attempt to defend the original pre-resignation factual basis
for his retaliation claim in responding to Defendant’s summary judgment motion, the court
determines that he has abandoned his original retaliation claim under the ADA to the extent based
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on this theory. See Black v. N. Panola Sch. Dist., 461 F.3d 584, 588 n.1 (5th Cir. 2006) (explaining
that “failure to pursue [a] claim beyond [the] complaint constitute[s] abandonment” of the claim,
which cannot be subsequently revived). Defendant is, therefore, entitled to summary judgment, as
a matter law, on Plaintiff’s retaliation claim that is based on events that occurred before he resigned
from Blue Sprig, and the court’s remaining analysis focuses on the parties’ contentions regarding
the new post-resignation factual basis for Plaintiff’s retaliation claim under the ADA.7
Defendant argues that, like his discrimination claim, Plaintiff’s ADA retaliation claim
based on this new post-resignation retaliation theory fails because he cannot establish a prima facie
case of retaliation in light of his admission that there is no evidence that he suffered an adverse
action or engaged in protected activity. In this regard, Defendant contends that the evidence
establishes that Mr. Putnam “quit (and was not constructively discharged [from his employment
at Blue Sprig]) and . . . his retaliation complaint rests on legally allowed and required reporting to
agencies that occurred after his employment ended.” Doc. 20 at 15.8 In addition, Defendant asserts
7 The Fifth Circuit has often held that a claim that is not raised in a pleading but for the first time in response to a
summary judgment motion is not properly before the district court. See, e.g., Cutrera v. Board of Supervisors of La.
State Univ., 429 F.3d 108, 113 (5th Cir. 2005). A similar rule disallowing new claims has also been applied to new
factual bases for previously pleaded legal theories. See, e.g., De Franceschi v. BAC Home Loans Serv., L.P., 477 F.
App’x 200, 204 (5th Cir. 2012); Benavides v. EMC Mortg. Corp., No. 3-12-46, 2013 WL 416195, at *4 (S.D. Tex.
Jan. 31, 2013). The Fifth Circuit, however, has also held that courts should construe new theories raised for the first
time in a summary judgment response as a motion to amend. See, e.g., Stover v. Hattiesburg Pub. Sch. Dist., 549 F.3d
985, 989 n.2 (5th Cir. 2008). In this case, the court will construe Plaintiff’s summary judgment response as a motion
to amend his pleadings to add the new post-resignation ADA retaliation theory because Blue Sprig was on notice of
his assertions in this regard as a result of discovery conducted by the parties, and it mentions the issue concerning the
BACB in its summary judgment brief as though the facts had been properly pleaded in Plaintiff’s Complaint. The
court also notes that Plaintiff has not previously amended his pleadings, and the Fifth Circuit has held that “[a] motion
to dismiss or for summary judgment does not extinguish a plaintiff’s right to amend” his or her pleadings, pursuant to
Federal Rule of Civil Procedure 15(a), “once as a matter of course at any time before a responsive pleading is served.”
Debowale v. United States Inc., 1995 WL 450199, at *2 (5th Cir. 1995) (citing Zaidi v. Ehrlich, 732 F.2d 1218, 1219
(5th Cir. 1984); and quoting Fed. R. Civ. P. 15(a)). 	As Plaintiff only references the ADA in his response to
Defendant’s summary judgment motion seeking dismissal of his retaliation claim under the ADA, the court does not
construe Plaintiff’s response to include a request to amend his pleadings to add a retaliation claim under Texas law
based on his new post-resignation BACB theory.
8 By emphasizing that the alleged retaliation occurred after Plaintiff resigned, Defendant appears to suggest that this
fact is fatal to Plaintiff’s ADA retaliation claim insofar as Defendant contends that such conduct by it does not qualify
as an adverse action because it occurred after Plaintiff resigned. In Robinson v. Shell Oil Co., 519 U.S. 337, 345-46
(1997), the Supreme Court held that Title VII protects former employees against discrimination, including retaliation
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that, when deposed, Plaintiff was unable to “identify any protected activity that he engaged in that
would cause retaliation.” Id. at 15-16.
Instead, according to Defendant, Plaintiff’s deposition testimony reflects that he “never
complained about any form of discrimination”; that he was unable to “identify any activity that
would have triggered Blue Sprig’s supposed retaliation”; that the “most Plaintiff could surmise
was that his request to have the mother present during [his] sessions with the seven[-]year-old
child ‘may have’ been the basis, but [he] admits that he was not terminated or disciplined after this
request, and [Blue Sprig] actually helped [him] in trying to succeed.” 	Id. at 16. 	Defendant
concludes by asserting that “Plaintiff’s retaliation claim is centered on Blue Sprig’s post-
employment reports to government agencies and the BACB, which are not only allowable and
such that a former employee can sue for allegedly retaliatory postemployment actions taken by a former employer. In
Robinson, the former employee alleged that that a negative employment reference sent from a former employer to a
prospective employer was in retaliation for his having filed a charge with the Equal Employment Opportunity
Commission. Id. at 346. The holding in Robinson has been interpreted as “a principle to ensure that employees who
are discharged in retaliation for their complaints are able to bring claims even though they are no longer a current
employee . . . , not to give someone who was once employed by a company a perpetual right of action for any
unfavorable action that the company may take at some point in the future.” See, e.g., Wells v. Texas Tech Univ., 2024
WL 2967859, at *5 (N.D. Tex. May 7, 2024) (citing Robinson, 519 U.S. at 346). As the district court in Wells aptly
notes, the issue of whether the holding in Robinson applies turns on the timing of the alleged postemployment
retaliation:
Consequently, a former employee fails to plausibly allege Title VII retaliation when she is
sufficiently removed from the employment relationship because the alleged harm is so attenuated
that it would not dissuade a reasonable worker from making a discrimination charge. See Allen v.
Radio One of Tex. II, L.L.C., 515 F. App’x 295, 302 (5th Cir. 2013) (citing Robinson, 519 U.S. at
339). In Allen, for example, the Fifth Circuit rejected the plaintiff’s claim of retaliation when her
former employer refused to do business with her new company, which occurred more than a year
after her protected activity and 18 months after she was fired. Id. In contrast, retaliation by a former
employer was actionable when the plaintiff asserted that he received a negative reference shortly
after he was fired and had filed an EEOC charge. Robinson, 519 U.S. at 339.
Wells v. Texas Tech Univ., 2024 WL 2967859, at *5. As herein explained, however, the timing between Blue Sprig’s
alleged postemployment retaliation in relation to Plaintiff’s alleged engagement in protected activity is unclear.
Additionally, the issue of whether Blue Sprig’s report to BACB does or does not constitute an adverse action because
it occurred after Plaintiff resigned was not adequately briefed by Defendant, so the court does not consider it as a
ground supporting summary judgment on Plaintiff’s ADA retaliation claim.
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required, but also not adverse employment actions.” For all of these reasons, Defendant contends
that Plaintiff cannot establish a prima facie case of retaliation.
The court has already determined that Plaintiff has failed to raise a genuine dispute of
material fact as to whether he engaged in protected activity under the ADA by seeking an
accommodation. This alone dooms Plaintiff’s retaliation claim. The court also determined that no
genuine dispute of material fact exists as to whether Plaintiff suffered an adverse employment
action notwithstanding his contentions that he was constructively discharged. That Plaintiff was
unable to establish that he suffered an adverse action in the form of constructive discharge,
however, has no bearing on whether, as he contends, that he was retaliated against after resigning.
As this issue was not adequately briefed, the court declines to consider it as an alternative ground
entitling Defendant to summary judgment on Plaintiff’s retaliation claim.9
9 By emphasizing that the alleged retaliation occurred after Plaintiff resigned, Defendant appears to suggest that such
fact is fatal to Plaintiff’s ADA retaliation claim insofar as Defendant contends that such conduct by it does not qualify
as an adverse action because it occurred after Plaintiff resigned. In Robinson v. Shell Oil Co., 519 U.S. 337, 345-46
(1997), the Supreme Court held that Title VII protects former employees against discrimination, including retaliation
such that a former employee can sue for allegedly retaliatory postemployment actions taken by a former employer. In
Robinson, the former employee alleged that that a negative employment reference sent from a former employer to a
prospective employer was in retaliation for his having filed a charge with the Equal Employment Opportunity
Commission. Id. at 346. The holding in Robinson has been interpreted as “a principle to ensure that employees who
are discharged in retaliation for their complaints are able to bring claims even though they are no longer a current
employee . . . , not to give someone who was once employed by a company a perpetual right of action for any
unfavorable action that the company may take at some point in the future.” See, e.g., Wells v. Texas Tech Univ., 2024
WL 2967859, at *5 (N.D. Tex. May 7, 2024) (citing Robinson, 519 U.S. at 346). As the district court in Wells aptly
notes, the issue of whether the holding in Robinson applies turns on the timing of the alleged postemployment
retaliation:
Consequently, a former employee fails to plausibly allege Title VII retaliation when she is
sufficiently removed from the employment relationship because the alleged harm is so attenuated
that it would not dissuade a reasonable worker from making a discrimination charge. See Allen v.
Radio One of Tex. II, L.L.C., 515 F. App’x 295, 302 (5th Cir. 2013) (citing Robinson, 519 U.S. at
339). In Allen, for example, the Fifth Circuit rejected the plaintiff’s claim of retaliation when her
former employer refused to do business with her new company, which occurred more than a year
after her protected activity and 18 months after she was fired. Id. In contrast, retaliation by a former
employer was actionable when the plaintiff asserted that he received a negative reference shortly
after he was fired and had filed an EEOC charge. Robinson, 519 U.S. at 339.
Wells v. Texas Tech Univ., 2024 WL 2967859, at *5. As herein explained, however, the timing between Blue Sprig’s
alleged postemployment retaliation in relation to Plaintiff’s alleged engagement in protected activity is unclear. For
this reason and because the issue of whether the post-resignation reporting to BACB constitutes an adverse action
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The court also declines to consider whether Plaintiff has raised a genuine dispute of
material fact regarding pretext. Although Defendant’s contention—that its reporting of the July
22, 2021 incident to the BACB was legally allowable—is sufficient to satisfy its burden of
proffering a legitimate, nondiscriminatory reason for reporting the incident to the BACB and shift
the burden to Plaintiff to “adduce sufficient evidence the proffered reason is pretext for retaliation,”
Nall, 917 F.3d at 348-49, Defendant’s summary judgment brief is limited to the issue of whether
Plaintiff can establish a prima facie case of retaliation. In its reply brief, Defendant significantly
expounds on this argument, contending that, even assuming for argument sake that Mr. Putnam’s
request to not work with the difficult child without his mother present qualifies as a protected
activity in the form of a request for reasonable accommodation (which it disputes), its reporting to
the BACB of the July 22, 2021 incident involving him does not constitute retaliation because:
Plaintiff’s behavior with the difficult child clearly qualifie[d] as a possible
ethics code violation that would trigger an obligation for a responsible provider to
report. Plaintiff admitted he told the crying autistic child, who he “strongly
disliked” and referred to as a “punk”, “I’ll give you something to cry about”, made
contact with the child and caused him to fall.
Doc. 22 at 6.
For support, Defendant relies on portions of the BACB Ethics Code for Behavior Analysts
(“BACB Ethics Code”), including the requirements that behavior analysts: (1) “not engage in
behavior that is harassing or hostile toward others”; (2) “prioritize clients’ rights and needs in
service delivery” by “provid[ing] services that are conceptually consistent with behavioral
principles, based on scientific evidence, and designed to maximize desired outcomes for and
protect all clients . . . from harm; (3) “select, design, and implement behavior-change interventions
(including the selection and use of consequences) with a focus on minimizing risk of harm to the
was not adequately briefed by Defendant for the court to consider it as a ground supporting summary judgment on
Plaintiff’s ADA retaliation claim.
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Memorandum Opinion and Order – Page 31
client and stakeholders”; and (4) “act in the best interest of clients, taking appropriate steps to
support clients’ rights, maximize benefits, and do no harm.” Doc. 22 at 4-5 (quoting Def.’s Reply
App. 51-69).
Defendant’s argument in this regard goes to the issue of whether Plaintiff can establish that
Blue Sprig’s proffered legitimate, business reason for reporting the incident to the BACB is a
pretext for unlawful retaliation under the ADA. Among other things, Plaintiff contends that the
court should not consider Defendant’s evidence regarding the BACB Ethics Code, which was not
produced to Plaintiff during discovery, unless he is given an opportunity to file a surreply.10 As
10 Blue Sprig contends that this argument by Plaintiff is “misplaced” because Plaintiff never requested that it produce
a copy of the BACB Ethics Code during the discovery phase, and this document is a publicly available online. In
discussing a similar issue and argument, the Fifth Circuit in Martino v. Kiewit New Mexico Corp., 600 F. App’x 908,
910-11 (5th Cir. 2015), explained that Federal Rule of Civil Procedure “26(a)(1)(A)(ii) mandates that a party initially
disclose ‘all documents . . . that the disclosing party has in its possession, custody, or control and may use to support
its claims or defenses, unless the use would be solely for impeachment.” For this reason, the Fifth Circuit rejected
Martino’s “attempts to justify his nondisclosure by claiming the USACE Contract was a public document, equally
available to both parties,” reasoning that “even if a document is publicly available or in the opposing party’s
possession, a party must still disclose it under Rule 26(a)(1)(A) to provide notice of evidence central to its claims or
defenses.” Id. at 911.
The court similarly rejects Blue Sprigs attempt to justify its admitted failure to disclose this document that it
now relies on to support its Motion for Summary Judgment. Under Federal Rule of Civil Procedure 37(c), a “party is
not allowed to use [undisclosed] information . . . to supply evidence on a motion, at a hearing, or at a trial, unless the
failure was substantially justified or is harmless.” Martino, 600 F. App’x at 911 (quoting Fed. R. Civ. P. 37(c)). In
determining whether evidence should be excluded under Rule 37(c), courts consider: (1) the party’s explanation for
the failure to disclose the evidence, (2) the importance of the evidence, (3) the potential prejudice to the opposing
party in allowing the evidence, and (4) the availability of a continuance. Id. (citing CQ, Inc. v. TXU Min. Co., L.P.,
565 F.3d 268, 279-80 (5th Cir. 2009)). Here, Blue Sprig lacks a compelling explanation for not producing a copy of
the BACB Ethics Code even though this document is central to its defense that its decision to report the July 2021
incident involving Plaintiff to the BACB is not evidence of unlawful retaliation under the ADA because it was required
to report the incident to the BACB. As Blue Sprig has maintained, at least initially, that its Motion for Summary
Judgment focused only on the prima facie stage of Plaintiff’s retaliation claim, the court determines that the import of
now allowing Blue Sprig to rely on this document is of no moment even though it appears that Blue Sprig may have
changed course or direction in its reply by expanding on its earlier argument. While Blue Sprig initially argued that it
was required to report the incident to the BACB, and in doing so it proffered a legitimate business reason for its
decision, its coming forward with evidence to prove that its decision in this regard was not retaliation, goes beyond
the stated scope of its Motion for Summary Judgment that focused only on whether Plaintiff could establish a prima
facie case of retaliation. If not allowed to file a surreply, Plaintiff will be prejudiced by the court’s consideration of
this evidence. Given the late stage of the proceedings in this case in which the trial was set and only vacated to give
the court time to rule on Defendant’s Motion for Summary Judgment and Plaintiff’s Motion for Leave to File Surreply,
a continuance is no longer an option. Moreover, given the less than stellar briefing by both side’s attorneys, a
continuance to resolve this issue would prolong this litigation unnecessarily particularly in light of the court’s
determination that Blue Sprig is entitled to summary judgment on Plaintiff’s ADA retaliation claim on another ground.
Accordingly, consideration of the foregoing factors weighs against allowing Blue Sprig to rely on this evidence in
support of its Motion for Summary Judgment.
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Memorandum Opinion and Order – Page 32
this argument in Defendant’s reply goes far afield of its initial contention that Plaintiff cannot
establish a prima facie case of retaliation and is based on evidence not previously produced, the
court will not consider it in ruling on Defendant’s Motion for Summary Judgment.
The court has already determined that Plaintiff has failed to identify summary judgment
evidence sufficient to raise a genuine dispute of material fact with respect to whether he engaged
in protected activity in connection with his discrimination claim. For similar reasons, he fails to
satisfy his burden of establishing a prima facie case of retaliation under the ADA with respect to
this requirement. Accordingly, even though the court has declined to consider and address all of
the defense arguments raised by Blue Sprig, it determines that Blue Sprig is entitled to judgment
as a matter of law on Plaintiff’s new post-resignation retaliation claim under the ADA for the
reasons stated such that this claim will be dismissed with prejudice.
III. 	Plaintiff’s Motion for Leave to File Surreply (Doc. 23)
Plaintiff contends that he should be allowed to file a surreply in connection with
Defendant’s Motion for Summary Judgment for two reasons. For the reasons that follow, the court
denies Plaintiff’s Motion for Leave.
This court has previously explained that, once a motion is filed, this District’s Local Civil
Rules permit a response by the nonmovant and a reply by the movant. See Local Civil Rule 7.1.
Thus, the movant is entitled to file the last pleading. Surreplies, and any other filing that serves
the purpose or has the effect of a surreply, are highly disfavored and must not to be filed as a
routine matter, as they usually are a strategic effort by the nonmovant to have the last word on a
matter beyond that permitted and contemplated by this district’s Local Civil Rules. 	Bailey v.
Mansfield Indep. Sch. Dist., 2019 WL 175088, at *2 (N.D. Tex. Jan. 10, 2019). In addition, the
court has found that surreplies usually are not that helpful in resolving pending matters, as they
tend to repeat prior arguments and only serve to unnecessarily delay the resolution of the
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Memorandum Opinion and Order – Page 33
underlying motion. The undersigned, therefore, only allows filings beyond that permitted by Local
Civil Rule 7.1 in exceptional or extraordinary circumstances. See PMA Ins. Grp. v. Polk Mech.
Co., LLC, 2024 WL 3974736, at *2 (N.D. Tex., Aug. 27, 2024) (citing Gezu v. Charter Comm’ns,
17 F.4th 547, 556 (5th Cir. 2021) (“Because the rules do not provide for surreplies as a matter of
right, the district court only accepts such filings ‘in exceptional or extraordinary circumstances.’”).
This District is not alone in its treatment of surreplies. PMA Ins. Grp., 2024 WL 3974736, at *2
(citing Weems v. Hodnett, No. 10-CV-1452, 2011 WL 2731263, at *1 (W.D. La. July 13, 2011)
(citing cases)).
To establish that exceptional or extraordinary circumstances warranting a surreply exist, a
party seeking leave to file a surreply ordinarily must show that a new issue, theory, argument, or
evidence was raised or relied on for the first time in the movant’s reply brief or in connection with
the reply brief. Id.; see also Austin v. Kroger Tex., L.P., 864 F.3d 326, 336 (5th Cir. 2017) (holding
that “the district court did not abuse its discretion” in denying Plaintiff’s motion to file a surreply
“because [Defendant] did not raise any new arguments in its reply brief”). Such circumstances
arise infrequently, as the scope of a reply is limited to addressing arguments raised in the movant’s
initial motion and brief because it would be unfair for the movant “to sandbag and raise wholly
new issues in a reply.” PMA Ins. Grp., 2024 WL 3974736, at *2 (citing Weems, 2011 WL 2731263,
at *10. For similar reasons, “arguments raised for the first time in a Reply brief are [generally]
waived.” Jones v. Cain, 600 F.3d 527, 541 (5th Cir. 2010) (citation omitted). With these
considerations in mind, the court considers Plaintiff’s grounds for seeking to file a surreply.
A. 	Timeliness of Plaintiff’s Summary Judgment Response
Plaintiff first asserts that “Defendant insinuates, albeit wrongly that Plaintiff’s [summary
judgment] response is late.” In this regard, Plaintiff contends that, while this District’s Local Civil
Rules require responses to be filed within 21 days of a summary judgment motion, Federal Rule
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of Civil Procedure 6(d) provides an additional three days for responses when a motion is filed
electronically. 	He, therefore, argues that his summary judgment response, which was filed on
August 14, 2025, twenty-four days after Defendant’s Motion for Summary Judgment was timely
filed.
As Defendant correctly notes, Plaintiff’s reliance on Rule 6(d) of the Federal Rules of Civil
Procedure is misplaced, as this rule was amended in 2016 to remove electronic filing from the
three extra days provided by the “mailbox rule.” Fed. R. Civ. P. 6(d) advisory committee’s notes
(2016 amendment) (“Rule 6(d) is amended to remove service by electronic means under Rule
5(b)(2)(E) from the modes of service that allow 3 added days to act after being served.”). Thus,
Plaintiff’s summary judgment response was not filed timely. Regardless, the court considered the
response, as it determined that Defendant suffered no legal prejudice from the brief delay.
Accordingly, this argument by Plaintiff does not constitute an exceptional or extraordinary
circumstance that would justify allowing him to file a surreply. More importantly, Plaintiff’s
proposed surreply does not contain any arguments regarding the timeliness of his summary
judgment response, so this is not a valid ground warranting the filing of a surreply.
B. New Legal Arguments and Evidence
Plaintiff next contends that he should be allowed to file a surreply to address new legal
theories and new evidence introduced in Defendant’s reply, which he did not have an opportunity
to address.
“Generally, and for obvious reasons, a reply brief is limited to addressing matters presented
by [the movant’s] opening brief and by [the respondent’s] response brief, and is not the appropriate
vehicle for presenting new arguments or legal theories to the court.” AAR, Inc. v. Nunez, 408 F.
App’x 828, 830 (5th Cir. 2011) (internal quotations omitted). “Just as new arguments are
inappropriate, it is generally improper for a party to introduce new evidence at the reply stage of a
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motion proceeding because the purpose of a reply brief is to rebut the nonmovant’s response, not
to introduce new evidence.” Robles v. Eminent Med. Ctr., LLC, 619 F. Supp. 3d 609, 626 (N.D.
Tex. 2022) (citations omitted). The reasoning behind this rule is embodied in this District’s Local
Civil Rules, which contemplate and permit the filing of an appendix in support of a motion and a
response to the motion, but not a reply belief. 	See N.D. Tex. L. Civ. R. 7.2(e) (appendix may
accompany a motion or response, not a reply). Further, “a reply brief that presents dispositive
evidence by way of new affidavits and exhibits deprives the nonmovant of a meaningful
opportunity to respond.” Lewis v. Southwest Airlines Co., No. 3:16-CV-1538-M, 2017 WL
879225, at *3 (N.D. Tex. Mar. 6, 2017) (citation omitted). Thus, the evidence submitted in support
of a reply brief must ordinarily be accompanied by a motion for leave.
Plaintiff asserts that Defendant should not be allowed to have the last word. To the contrary,
as the movant, this District’s Local Civil Rules contemplate that Blue Sprig will and should have
the last or final word as long as its reply brief is limited to addressing matters presented in its
opening brief and Plaintiff’s response and does not contain new arguments or legal theories that
were not included in its opening brief or Plaintiff’s response. See AAR, Inc., 408 F. App’x at 830.
Plaintiff also fails to explain in his Motion for Leave which legal theories or evidence Defendant
introduced for the first time in its reply. As with his summary judgment response, Plaintiff makes
conclusory arguments accompanied by recitations of law that are unhelpful because they are not
adequately briefed. It is not incumbent on the court to speculate regarding the legal or evidentiary
bases for arguments or discern how the law and evidence referenced supports a litigant’s argument.
This alone is an independent ground for denying Plaintiff’s Motion for Leave to the extent leave
is sought to file a surreply to address allegedly new legal argument or evidence. 	As discussed
below, review of Plaintiff’s proposed surreply further supports the court’s determination that the
Motion for Leave should be denied.
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Memorandum Opinion and Order – Page 36
1. 	Alleged New Evidence (BACB Code of Ethics)
In his proposed surreply, Plaintiff asserts that the exhibit attached to Defendant’s reply—a
copy of the BACB Ethics Code—was never previously disclosed to him and should not be
considered by the court in determining whether Blue Sprig is entitled to summary judgment on his
retaliation claim. 	As the court has not considered Defendant’s evidence regarding the BACB
Ethics Code, this does not serve as a justification for allowing Plaintiff to file his proposed surreply.
2. 	Alleged New Legal Arguments or Theories
With respect to his ADA retaliation claim, Plaintiff asserts in his proposed surreply that
the temporal proximity between his alleged request for accommodation and the alleged adverse
action in the form of Blue Sprig’s reporting the July 2021 incident to the BACB supports an
inference of causation in connection with his prima facie case of retaliation. In addition, as noted,
he takes issue with Defendant’s reliance on the BACB Ethics Code because it was not previously
produced to him, but he does not contend that Defendant’s argument based on this evidence should
not be considered without allowing him to address it in a surreply. He instead simply argues,
without any citation to evidence, that “Defendant[’s] argument that its report to the . . . (BACB)
was not retaliatory is unpersuasive. . . . Plaintiff has presented evidence that the report was made
in bad faith and was intended to harm his professional reputation.” Doc. 23 at 9.
Plaintiff is correct that Defendant mentions the term “causation” for the first time in its
reply brief apparently in connection with its argument that Plaintiff has failed to establish a prima
facie case of retaliation. The court, however, did not consider this argument or Defendant’s
inadequately briefed contention that its decision to report the July 2021 incident to the BACB after
Plaintiff’s resignation does not constitute an adverse action. 	Likewise, for the reasons already
explained, the court did not consider Defendant’s argument, based on the BACB Ethics Code, that
its decision to report the July 2021 incident to the BACB after Plaintiff’s resignation does not
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Memorandum Opinion and Order – Page 37
constitute ADA retaliation. 	Consequently, any contentions by Plaintiff in this respect do not
warrant a surreply by him. Plaintiff also fails to identify any evidence to support his assertion that
he presented evidence that Blue Sprig acted in bad faith with the intention of harming his
reputation.
Regarding his failure-to-accommodate claim under the ADA, Plaintiff asserts as follows
in his proposed surreply:
Defendant contends that Plaintiffs failure-to-accommodate claim fails
because he did not explicitly link his request to his disability or provide evidence
of limitations caused by his condition. This argument misstates the law. Under the
ADA, an employer’s duty to accommodate is triggered when the employer knows
of the employee’s disability and the need for accommodation. In this case,
Defendant postures itself in its expertise in dealing with learning disabilities. Picket
v. Texas Techis Cnty, No. 24-10304 (5th Circuit 2024)[;] Smith v. Har[r]is Cnty.[,]
4:15-cv-2226[, 2017 WL 11845920] (S.D. Tex[.] 2017 [])[.] Plaintiff informed
Defendant of his disability and requested not to work with a specific child due to
the impact on his condition.
Defendant[’]s failure to engage in the interactive process or provide
reasonable accommodations violates the ADA and precludes summary judgment[.]
Defendant[’s] reliance on Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 164
(5th Cir. 1996), is unavailing. The Fifth Circuit has clarified that the ADA requires
employers to accommodate known limitations, not merely disabilities. See Neely v.
PSEG Tex., Ltd. P’ship, 735 F.3d 242 (5th Cir[.] 2013)[;] Ball v. LeBlanc, 792 F.
2[]d [5]84 (5th Cir[.] 2015). Plaintiff[’]s evidence that Defendant was aware of his
limitations and failed to act creates genuine issues of material fact.
Doc. 23 at 7-8 (cleaned up).
As a preliminary matter, Plaintiff’s proposed surreply fails to identify any argument in Blue
Sprig’s reply that qualifies as a new legal theory or argument as asserted in his Motion for Leave.
It is apparent from Plaintiff’s proposed surreply that he disagrees with Blue Sprig’s reply. This,
however, is not grounds for allowing him to file a surreply.
Plaintiff also misstates Blue Sprig’s argument based on the Fifth Circuit’s opinion in
Taylor, which discussed the second and third elements of an ADA claim based on failure to
accommodate. Contrary to Plaintiff’s assertion, Blue Sprig’s reply argument based on Taylor,
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Memorandum Opinion and Order – Page 38
which was discussed at length in its initial brief, see Doc. 20 at 11-12, merely responds to and
points out the weaknesses in Plaintiff’s legal arguments and evidence in relation to the legal
standard in Taylor that requires employers under the ADA to reasonably accommodate known
limitations, not disabilities, and places the burden on an employee who needs accommodation to
inform his or her employer that a disability-based limitation exists for which reasonable
accommodation is needed. Plaintiff attempts to flip this legal standard on its head by shifting the
burden to an employer to ascertain the potential mental limitations of an employee that necessitates
reasonable accommodation without any input or request by an employee for accommodation to
address a limitation that is within the unique knowledge of the employee. Additionally, the court
was unable to locate the Fifth Circuit case “Picket v. Texas Techis Cnty, No. 24-10304 (5th Cir[.]
2024),” based on the limited information provided in Plaintiff’s proposed surreply. Thus, for all
of the foregoing reasons, allowing Plaintiff to file his proposed surreply with respect to his ADA
claim based on failure to accommodate is not warranted.
Finally, Plaintiff asserts in his proposed surreply with respect to his hostile work
environment or harassment-based discrimination claim that:
Defendant argues that Plaintiff[’]s hostile work environment claim fails
because the alleged conduct was not severe or pervasive and was not based on his
disability. To establish a hostile work environment under the ADA, a plaintiff must
show that the harassment was sufficiently severe or pervasive to alter the conditions
of 	employment 	and 	create 	an 	abusive 	working 	environment. 	Flower[s] 	v.
S[outhern] Reg’l Physician Servs[.,] 247 F. 3d. 229[] (5th Cir. 2001)[;] Patton v.
Jacobs Eng’g Grp., Inc., 874 F. 3d 437 (5th Cir[.] 2017). Plaintiff has presented
evidence of repeated instances of harassment and unreasonable work assignments
that exacerbated his disability, which a reasonable jury could find severe and
pervasive. Defendant[’]s assertion that the conduct was not based on Plaintiff[’]s
disability is contradicted by evidence that Defendant was aware of Plaintiff[’]s
condition and failed to take steps to address the impact of its actions. This creates
a genuine issue of material fact as to whether the harassment was disability-based.
Doc. 23 at 8 (cleaned up).
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Once again, instead of identifying any argument in Blue Sprig’s reply that qualifies as a
new legal theory, this is an improper attempt by Plaintiff to get the last word by responding to
Defendant’s reply arguments, which were limited to responding to Plaintiff’s summary judgment
response and pointing out the weaknesses in Plaintiff’s arguments and evidence. 	Additionally,
the court has already determined that Plaintiff’s evidence is insufficient to raise a genuine dispute
of material fact. Plaintiff fails to provide any citations to the record to support his assertion that
he “presented evidence of repeated instances of harassment and unreasonable work assignments
that exacerbated his disability.” Id.
Moreover, that Blue Sprig was aware of Plaintiff’s disability and autism or Asberger’s
diagnosis is not evidence that it discriminated against Plaintiff based on his protected status. The
court also determined that Plaintiff waived any argument he may have had in this regard by not
responding to Defendant’s contention that his ADA hostile work environment or harassment-based
claim fails because it is not based on his protected status. Having waived this argument by not
addressing it in his summary judgment response, Plaintiff cannot now revive it by arguing in a
surreply what he could have and should have argued in his summary judgment response.
Accordingly, Plaintiff has not demonstrated the type of exceptional or extraordinary circumstances
warranting a surreply in connection with his ADA hostile work environment or harassment-based
claim or any of his other claims. The court, therefore, denies Plaintiff’s Motion for Leave (Doc.
23).
IV. 	Plaintiff’s Remaining Claims Under the Texas Labor Code
As indicated, Plaintiff’s only alleges in passing in the jurisdiction section of his Complaint
that he is bringing employment law claims under Texas law. Doc. 1 ¶ 2.1 (“This Court has federal
jurisdiction under 28 U.S.C. § 1331, et seq., because the claims brought herein arise under the
Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq., and “its State of Texas equivalent,
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Memorandum Opinion and Order – Page 40
Tex. Lab[or] Code § 21.051, et seq.”). Assuming from this allegation that Plaintiff meant to bring
claims under the Texas Labor Code, only those claims remain because the court has determined
that his ADA claims will be dismissed with prejudice. Pursuant to 28 U.S.C. § 1367,11 the court
has supplemental jurisdiction over these remaining state law claims. The court, however, must
decide whether to retain jurisdiction over the remaining state law claims now that it has determined
that Plaintiff’s federal claims over which it had original jurisdiction, will be dismissed with
prejudice.
Supplemental jurisdiction over state law claims is a matter of discretion, not a matter of the
plaintiff’s right. United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966). A federal
court has broad discretion in deciding whether to exercise supplemental jurisdiction over state law
claims after all federal law claims have been dismissed. See 28 U.S.C. § 1367(c)(3); Noble v.
White, 996 F.2d 797, 799 (5th Cir. 1993). A district court may decline to exercise supplemental
jurisdiction over a state law claim if:
(1) the claim raises a novel or complex issue of State law, (2) the claim substantially
predominates over the claim or claims over which the district court has original
jurisdiction, (3) the district court has dismissed all claims over which it has original
jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons
for declining jurisdiction.
28 U.S.C. § 1367(c). The court also considers other factors, including judicial economy,
convenience, fairness, and comity. Enochs v. Lampasas Cnty., 641 F.3d 155, 159 (5th Cir. 2011)
(citing Carnegie–Mellon University v. Cohill, 484 U.S. 343, 350 (1988), and referring to “judicial
economy, convenience, fairness, and comity[ ]” as the “common law factors”).
11 Section 1367(a) states: “Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal
statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have
supplemental jurisdiction over all other claims that are so related to claims in the action within such original
jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.
Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.”
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Consideration of the statutory and common law factors weigh in favor of declining to
exercise supplemental jurisdiction over Plaintiff’s state law claims. As all federal claims by
Plaintiff will be dismissed with prejudice, this determination is in keeping with “[t]he general rule
. . . that a court should decline to exercise jurisdiction over remaining state-law claims when all
the federal-law claims are eliminated before trial[.]” Brookshire Bros. Holding, Inc. v. Dayco
Prods., Inc., 554 F.3d 595, 602 (5th Cir. 2009). While the amount of time expended by the court
on Defendant’s Motion for Summary Judgment and Plaintiff’s Motion for Leave to File Surreply
is significant, this is so only because the parties did not comply with this District’s Local Rules for
briefing and submission of evidence, and the parties’ briefing on these motions, including the
citations to legal authority and evidence, was inadequate in many respects. 	Considerations of
judicial 	economy 	and 	convenience still 	weigh 	against 	the court 	exercising 	supplemental
jurisdiction over the state law claims because the court has not ruled on the merits of these claims
or spent any time on them; the bases for these claims appear to be the same but that is not entirely
clear given the lack of factual allegations in Plaintiff’s Complaint with respect to such claims; and
the theories relied on by Plaintiff have evolved and changed during the course of discovery.
Regardless, any state law claims will necessarily dominate the litigation going forward.
Though the state law claims do not appear to raise particularly novel or complex issues under
Texas law, the law governing any employment discrimination claim under Texas law by Plaintiff
will be governed by a different legal standard from Plaintiff’s ADA discrimination claims. See
Pineda v. United Parcel Service, Inc., 360 F.3d 483, 488 (5th Cir. 2004) (discussing the Texas
Supreme Court’s holding in Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 479-80 (Tex.
2001), and concluding that the “motivating factor” language in § 21.055 of the Texas Labor Code
applies to employment discrimination claims based on race, color, sex, national origin, age, and
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Memorandum Opinion and Order – Page 42
disability, but not to retaliation claims brought under § 21.055 to which the “but for” standard
applies).
Regarding convenience and fairness, nothing in the record suggests it would be less
convenient or unfair to litigate the state employment law claims in state court. In this regard, the
Fifth Circuit has previously reasoned that “it [is] certainly fair to have [ ] the purely Texas state
law claims heard in Texas state court[.]” See Enochs, 641 F.3d at 160. Consideration of the last
common law factor, comity, also weighs in favor of dismissal, as retaining jurisdiction would
disrupt the balance of congressionally approved federal and state judicial responsibilities. See id.
(“[C]omity demands that the important interests of federalism and comity be respected by federal
courts, which are courts of limited jurisdiction and not as well equipped for determination of state
law as are state courts.”) (internal quotations and citation omitted).
Thus, for all of these reasons, the court declines to exercise supplemental jurisdiction over
any remaining state law claims that Plaintiff intended to bring in this action, and such claims will
be dismissed without prejudice. 	Consistent with section 1367(d), the limitations period for any
such claim will be tolled for 30 days after dismissal of the claim(s) unless state law provides a
longer tolling period.
V. 	Conclusion
For the reasons discussed, Plaintiff has failed to raise a genuine dispute of material fact
regarding the matters on which Defendant moved for summary judgment, and Defendant is entitled
to judgment as a matter of law on each of Plaintiff’s claims under the ADA. The court, therefore,
grants Defendant’s Motion for Summary Judgment (Doc. 19); denies Plaintiff’s Motion for Leave
to File Surreply (Doc. 23); dismisses with prejudice all claims by Plaintiff under the ADA for
discrimination (failure to accommodate), harassment-based discrimination or hostile work
environment, and retaliation based on pre-resignation and post-resignation theories. Further, for
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Memorandum Opinion and Order – Page 43
the reasons explained, the court declines to exercise supplemental jurisdiction over any remaining
state law claims that Mr. Putnam intended to bring in this action under Texas Labor Code § 21.051,
et seq., and these claims are dismissed without prejudice.
It is so ordered this 4th day of March, 2026.
_________________________________
Sam A. Lindsay
United States District Judge
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