Parker v. Benteler Steel Tube Mfr

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-30785
Summary Calendar

DONNA N. PARKER,

Plaintiff - Appellant

v.

BENTELER STEEL TUBE MANUFACTURING CORPORATION,
incorrectly named Benteler Steel,

Defendant - Appellee

Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:17-CV-1453

Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
The plaintiff asserted claims against her employer of racial
discrimination, retaliation, sexual harassment, and a failure to accommodate
based on her disability. The district court granted summary judgment to the
employer on all claims. We AFFIRM.

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
May 29, 2020

Lyle W. Cayce
Clerk
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FACTUAL AND PROCEDURAL BACKGROUND
The defendant Benteler Steel Tube Manufacturing Corporation is a
company specializing in manufacturing and processing seamless hot-rolled
steel tubes and seamless cold-drain steel tubes for the automotive, precision-
engineering, construction, and energy-production/exploratory-drilling
industries. In June 2015, Benteler hired the plaintiff, Donna Parker, as a bar-
saw operator in Shreveport, Louisiana. Bar-saw operators start and oversee
the automated cutting process. The job involves changing out the 33.5-pound
blade and operating a forklift or overhead crane. Parker was the only female
in the group of four operators. Shortly after she was hired, Parker underwent
a fitness-for-duty exam, in which she disclosed that she took a blood pressure
medication. As with other new employees, Parker began work on a 90-day
probationary status. Within her first two months at the company, she had
already attended multiple trainings. One of the other bar-saw operators was
assigned to train her.
Parker alleges that her deficient performance was a result of not
receiving training because her supervisor was discriminating against her. She
also claims that the man assigned to train her refused to do so because she had
re jected his advances. Per Parker’s request, she was later assigned to a new
trainer. This did not improve her performance, though, and Parker continued
to struggle performing basic tasks of the job.
On September 2, 2015, Parker’s doctor sent a letter to Benteler informing
the company that Parker’s medication caused dizziness and frequent
urination. On September 15, Parker received a disciplinary report, and her
probationary status was extended by four weeks. On September 21, Benteler
conducted its 90-day evaluation of Parker’s work performance, and she
received a score of 57 out of 100. About a month later Parker filed her first
charge with the Equal Employment Opportunity Commission. Parker received
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two additional employee-discipline reports. The disciplinary reports were
issued due to multiple incidents where Parker refused to do the tasks assigned
to her and due to her violating a co-worker’s privacy by going through his
emails and text messages on his phone.
On December 14, 2015, Parker was not at work because she was being
treated at the hospital. The doctor’s work-release form said she could return
to work the next day with no restrictions. On December 15, Parker refused to
operate the bar saw by herself, explaining that she could not run the overhead
crane because she was on medication that caused dizziness. Parker met with
the human resources department and was placed on unpaid administrative
leave. She was told to see her doctor for an evaluation of whether she could
perform the essential functions of the bar-saw operator job and whether
accommodations were needed. Parker’s doctor provided a letter in January
2016, stating that Parker could perform the essential functions of the job with
reasonable accommodation — specifically, “easy access to a restroom.” The
doctor did not indicate whether accommodations were needed to aid Parker
with her dizziness. So, on January 19, 2016, Parker underwent an additional
fitness-for-duty evaluation with a different doctor. That doctor submitted a
report to Benteler and explained that Parker had been uncooperative and had
re fused to share her medical history and other medical information. On March
16, 2016, Parker filed a second charge with the EEOC.
Benteler tried again to get a more detailed answer from Parker’s primary
physician, this time sending the doctor a letter with a more thorough
explanation of the job requirements and pictures of the facility and equipment.
The doctor did not respond. Benteler then sent Parker a final letter inquiring
about her fitness for duty on March 23, 2016. Parker did not respond. On
April 22, Benteler sent a letter to Parker notifying her that her employment
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was terminated as of that day. Parker filed a third charge with the EEOC on
July 14.
On August 8, 2017, the EEOC dismissed all three of Parker’s charges.
Parker sued Benteler in the United States District Court for the Western
District of Louisiana on November 6, 2017. On May 10, 2019, Benteler moved
for summary judgment, and the district court granted the motion. Parker
appealed.

DISCUSSION
Parker raises several claims under Title VII, 42 U.S.C. § 2000e et seq.,
and under the Americans with Disabilities Act, 42 U.S.C. § 12112 et seq. We
address them in the order presented on appeal.

I. Racial discrimination and retaliation
Parker asserts her termination was a result of racial discrimination, but
she provides no factual or legal support for this argument. Her amended
complaint does not assert a racial discrimination claim and contains no
allegations that could be construed as alleging racial discrimination. Further,
Parker testified in a deposition that she had three claims, which were based
on sexual harassment, her disability, and retaliation. Her failure to offer any
reasoning or factual support for her claim causes us to conclude it is “wholly
without merit.” See 16 Front Street, L.L.C. v. Mississippi Silicon, L.L.C., 886
F.3d 549, 561 (5th Cir. 2018).
Parker’s appellate brief also refers to “retaliation” alongside racial
discrimination. Parker provides no factual or legal support for this claim
either. Her appellate brief reference is solely in a subheading. Parker has
abandoned her retaliation claim by not briefing the issue on appeal. Davis v.
Davis, 826 F.3d 258, 266 (5th Cir. 2016).
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II. Sexual harassment
The district court dismissed Parker’s sexual harassment claim because
Parker had failed to exhaust her administrative remedies. Title VII mandates
that a person must file a charge with the EEOC before filing suit in court. 42
U.S.C. § 2000e-5(e); Fort Bend Cnty. v. Davis, 139 S. Ct. 1843, 1846, 1851
(2019). This is a claims-processing rule, not a jurisdictional one. Fort Bend
Cnty., 139 S. Ct. at 1846. Here, the district court reasoned that although
Parker had filed three EEOC charges, none of those alleged a sexual
harassment claim. Indeed, the district court noted that Parker testified in a
deposition that she never told EEOC about her sexual harassment claim. On
appeal, Parker does not contest that the EEOC charges failed to raise sexual
harassment. Nevertheless, she argues that the district court erred because a
lawsuit may encompass allegations included in the EEOC charge and those
that are developed “in the course of a reasonable investigation of that charge.”
Weathers v. Marshalls of MA, Inc., No. 02-717, 2002 WL 1770927, *2 (E.D. La.
July 31, 2002). She argues that she gave the EEOC a handwritten note
informing the agency of the sexual harassment claim.
Parker seems to be arguing that the sexual harassment claim was
uncovered through a reasonable investigation. “The suit filed may encompass
only the discrimination stated in the charge itself or developed in the course of
a reasonable EEOC investigation of that charge.” National Ass’n of Gov’t
Emps. v. City Pub. Serv. Bd., 40 F.3d 698, 712 (5th Cir. 1994) (quotation marks
and alteration omitted). Notably, though, it is not Parker’s investigation or
the discovery process that can broaden the scope of a charge. Id. It is the
EEOC’s investigation. Id. Parker seems to argue that her sexual harassment
claim was uncovered through discovery during the district court litigation,
which is not relevant to whether she exhausted her administrative remedies.
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We agree with the district court that Parker did not exhaust her
administrative remedies for this claim.

III. Failure to accommodate
The district court based its dismissal of the failure-to-accommodate
claim on the fact that Parker was not “qualified” for the bar-saw operator
position. Because the district court found that Parker was not qualified, its
inquiry ended there. Credeur v. La. Through Office of Att’y Gen., 860 F.3d 785,
792 (5th Cir. 2017). On appeal, Parker does not address whether she was
qualified for the position, and she has therefore abandoned any argument to
the contrary.
AFFIRMED.
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