Byrd v. Devoted Health Services Inc

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
DE'BORAH BYRD, 	§
§
Plaintiff, 	§
§
VS. 	§ 	CIVIL ACTION NO. 4:24-CV-04885
§
DEVOTED HEAL TH SERVICES, INC., 	§
§
Defendant. 	§
ORDER
Pending before this Court is Defendant Devoted Health Services, Inc. ' s ("Defendant" or
"Devoted Health") Motion for Summary Judgment (Doc. No. 	12). Plaintiff De' borah Byrd
("Plaintiff' or "Byrd") filed a response, (Doc. No. 14), and Devoted Health replied. (Doc. No. 15).
After a close review of the filings , admissible summary judgment evidence, and the relevant legal
standards, this Court hereby GRANTS Devoted Health' s Motion for Summary Judgment (Doc.
No. 12) and DISMISSES this case with prejudice.
I. 	Factual Background
This case arises from alleged employment discrimination and retaliation. In September
2022, Byrd, a "Black and Nigerian" woman, (Doc. No. 14 at 8) , began working at Devoted Health.
Devoted Health is a health insurance company specializing in Medicare Advantage plans for
seniors, as a remote Member Outreach Specialist. (Doc. No. 12 -2 at 5, 13) ; (Doc. No. 14-1 at 1).
As a remote Member Outreach Specialist, Byrd worked from home and was responsible for
making calls to Devoted Health members to assist them with scheduling appointments and
United States District Court
Southern District of Texas
ENTERED
May 08, 2026
Nathan Ochsner, Clerk
Case 4:24-cv-04885 Document 16 Filed 05/08/26 in TXSD Page 1 of 33

enrolling in clinical programs. (Id. at 6- 7). Byrd was responsible for completing 50 calls per day
to Devoted Health members. (Id. at 8) .
In March 2023 , Byrd received her 2022 Annual Performance Review. (Doc. No. 14-1).
The Review stated, in part:
De'borah has met/sometimes exceeded in her call/appt goals, quality goals, and
competencies. She asks great questions in order to better understand processes and
offers advice to her fellow teammates when she has encountered a situation that
may be beneficial for them to be able to navigate in the future.
(Id. at 1). Based on the record before this Court, Byrd did not receive any formal or informal
disciplinary actions, warnings, or notices in 2022 or 2023.
After over a year of employment with Devoted Health, Byrd took an approved leave of
absence from her position at Devoted Health under the Family and Medical Leave Act ("FMLA")
due to abdominal surgery. (Doc. No. 12-2 at 9) ; (Doc. No. 14-2 at 23). Byrd was on leave from
December 20, 2023 through February 5, 2024. (Doc. No. 12-2 at 9). At the conclusion of her leave
of absence, Byrd was approved by her physician to return to her full duty at Devoted Health
without any restrictions or modifications. (Doc. No. 12-3).
Upon her return to Devoted Health, Byrd remained in her role as a Member Outreach
Specialist, but she was assigned to a new team. (Doc. No. 12-2 at 9). Byrd switched from
scheduling appointments with nurse practitioners to a team that specialized in scheduling
appointments with technicians. (Id. at 10). Before she began work with the new team, Byrd
received a two-day training for the new software program that the team used to place calls and
schedule appointments. (Id. at 11 ). Byrd then began to work for the new team under a different
manager, Tiffany Pierce ("Pierce"), "a Black, African American woman." (Id. at 12); (Doc. No.
12 at 8).
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Pierce scheduled one-on-one meetings with Byrd to address her work on the new team. On
February 15, 2024, Pierce met with Byrd "to go over drive time expectations as she reached out
for assistance" to improve her scheduling process. 1 (Doc. No. 12-2 at 14- 15); (Doc. No. 12-4 at
20). On February 23 , 2024, however, Byrd was "flagged" for "scheduling drive time errors" even
after the training call. (Id.). As a result, a senior member on the team attempted to meet with Byrd
and, in an attempt to correct the mistakes, Pierce "provided [Byrd] with a list of members to
reschedule - and provided a [one] hour block to complete the tasks." (Id.). Pierce noted that Byrd
never rescheduled those members and failed to complete the assignment. (Id.). Byrd, however,
testified in her deposition that when she went to view the list, "the team lead had already
rescheduled all the appointments." (Doc. No. 12-2 at 20).
On February 27, 2024, Pierce and Byrd had a scheduled shadowing session, but Byrd had
twice attempted to reschedule through the shared calendar. (Doc. No. 	12-4 at 16). Internal
messages between Pierce and Byrd show the following exchange:
PIERCE at 8:49AM: Good Morning [De'borah] - we are shadowing today. Please
prepare and I will see you at 9am - thank you.
BYRD at 8:51AM: Good morning, I changed the time 2x, because I will not be
available at 9.
PIERCE at 8:51 AM: Can you explain why you won't be available? Are you
clocking out for the day? I am not seeing a request for PTO? [] If you are needing
to take time - please let me know. I see that you are clocked as of 825am and have
made O calls since your start time? [] I am in the meets - please join unless you are
needing to clock out for the duration of this shadowing session. Thank you.
1 In support of its Motion for Summary Judgment, Devoted Health relies on a document titled
"Deborah Data" that was purportedly prepared by Tiffany Pierce. (Doc. No. 12-4). The document
describes meetings, messages, and other interactions between Pierce and Byrd. The document also
contains screenshots of internal messages. Byrd did not object to this evidence and refers to the
same document in her Response. (Doc. No. 14-1 at 11). Accordingly, the Court may rely on the
document. Maurer v. Indep. Town , 870 F.3d 380, 384 (5th Cir. 2017) (explaining that "materials
cited to support or dispute a fact need only be capable of being presented in a form that would be
admissible in evidence").
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PIERCE at 9: 1OAM: Anything longer than 5 minutes of personal time requires you
to be clocked - I am assuming that since we dropped from the meeting at [9]02 am
and have not returned as of [9]09 [] you are planning to submit a form for clock out
for personal time.
(Id. at 17). According to Pierce, Byrd joined the meeting at 9:15AM and stated that she attempted
to reschedule because she knew that she needed to be in the bathroom. (Id. at 18). Pierce informed
Byrd she needed to contact Human Resources to seek an accommodation if she needed to use
personal time to frequently use the bathroom. (Id.). During her deposition, Byrd testified that she
attempted to cancel the meeting "because [she] kept having panic attacks and anxiety attacks" and
that her repeated messages "back to back, back to back, back to back ... caus[ ed] [her] to have -
was making [her] - have the episode even worse. And that's when [she] finally joined the call."
(Doc. No. 12-2 at 21). Byrd testified that she "was telling [Pierce] about that she was making [her]
feel uncomfortable" and that "she was being unprofessional." (Id.). Byrd said that Pierce accused
her of "stealing time," and Byrd further testified:
I wasn't stealing time. And I said I just got back from surgery and my sister just
passed away. So I'm just trying to get myself together. And I said you're making
me feel uncomfortable by repeatedly texting me back to back to join the call when
I - when I asked to reschedule because I'm not in a good head space.
And then she just kept on - it's like she was getting off on it or something. She
started looking demonic in the face and kept saying the same thing: you're stealing
time, you're stealing time.
And like, I don't know, but she just - I can't remember what happened after that.
Then she said she's going to disconnect the call and then [] reschedule the meeting.
(Id. at 23).
After this interaction, Pierce and Byrd both reached out to Human Resources. See (Doc.
No. 12-5 at 2); (Doc. No. 12-6). Byrd emailed two Human Resources employees:
Tiffany [Pierce] added shadowing on my calendar, and I changed the time to the
afternoon. She then slack [sic] me asking why I changed it. I responded, letting her
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know that I would not be available at that time. I left the bathroom at 9:02am; I
joined the meeting and immediately told her I had to go to the bathroom. Once I
joined the meeting, she began to say I was stealing time because I was not making
any calls in the morning. She then stated, she notices in the morning I am not calling
anyone. I explained to her I just got back from surgery; in the morning I have to go
to the bathroom multiples [sic] times. I then express to her, that forcing me to
interact with her makes me feel uncomfortable and I did not feel comfortable telling
her, that I have to go to the bathroom more often than normal since I had surgery
and just returned back to work from leave. She smirked as if it was funny , and then
asked if I had spoken with benefits. She then stated I was stealing time and wasn't
making any calls and I need to clock out if I have to go to the bathroom. I asked her
how I can make calls if I am in the bathroom. She then stated I need to go ahead
and clock out for the day, if I am not going to be making any calls. I then said, I
can start making calls now, that is why I joined the call. She said, what do you
mean? She mentioned again I was stealing time, and said she will follow up with
HR, and I told her let me know what HR says.
This is the second time she has tried to force me to speak with her, after I suggested
meeting with her at a different time. Another reason, I did not feel comfortable
telling her anything personal about me , because when I told her last week that my
sister in law was dying of cancer she had this smirk on her face the entire time. If
she laughed about my sister dying of cancer, I knew she wou ld laugh about
something even more personal going on with my health.
I expressed 	to 	her 	again, the 	forced 	interactions 	make 	me 	feel 	extremely
uncomfortable. She said she will cancel shadowing and the 1:1 for the day and
would get back to me once she spoke to HR.
(Doc. No. 12-6). Later that day, Human Resources responded to the email:
(Id.).
Thank you for reaching out with this information. In your email you state that in
the morning you have to use the bathroom multiple times. If more bathroom breaks
are needed outside of the already provided 2-15 minute breaks per day, this would
be considered an accommodation and does need to go through an approval process.
You will need to submit a claim with SunLife for a medical accommodation and it
will need to go through SunLife' s review process; similar to what happened with
your recent leave of absence. 	Without an approved accommodation you are
expected to adhere to your schedule and be working during your scheduled shift.
Please let me know if you have any questions.
On the same day, Pierce met with Human Resources and reviewed Byrd' s "productivity"
from February 12th through February 27th. (Doc. No. 12-4 at 18 - 20). Pierce reviewed the time
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that Byrd clocked into work and the time she made her first call to a member. (Id.). For example,
Pierce noted that on February 16th, Byrd clocked in at 8 :26 AM and did not make her first call
until 9:26 AM, for a total " no outreach" time of 50 minutes. 2 Pierce concluded that, in that two-
week time frame, Byrd was unaccounted for and not making calls to members for a total of 8.5
hours. (Id.).
Two days later, on February 29, 2026, Devoted Health issued a "Performance Final
Warning" to Byrd. (Doc. No. 12-7). The Final Warning lists "[f]ailure to complete assigned tasks,"
"Call Avoidance Behavior," "Failure to Demonstrate Accountability and Ownership," "Failure to
Demonstrate Organizational Skills," and "Misrepresentation of Working Hours" as the reasons for
the warning. (Id.). Devoted Health provided specific examples to support each of these reasons.
For the "Failure To Complete Assigned Tasks, Demonstrate Accountability and Ownership and
Demonstrate Organizational Skills," Devoted Health stated:
Supervisor and De'borah met to review drive time expectations as she reached out
for assistance. De ' borah was told that we must include a lunch block for techs and
that we are not able to utilize the tech 's lunch block for drive time. Talked through
drive time guidelines. [Byrd] stated she understood. However, error still occurred
and on 2/ 23 supervisor met with De'borah and provided her with a list of members
to reschedule - and provided a 1 hour block to complete the tasks. As of 2/27/24
members on the list were not outreached or rescheduled.
[Byrd] did show appropriate follow through skills related to [Member Outreach
Specialist] role and expectations.
[Byrd] has failed to be open to constructive feedback from Seniors/Supervisors.
Refused to meet with senior to review drive time errors made.
(Id.). For "Call Avoidance Behavior," Devoted Health stated that on February 21, 2024, the
Supervisor reviewed Call Avoidance expectations, including avoiding "Excessive Gaps between
2 This result was reached by taking the total "no outreach" time and subtracting the allotted ten
minutes of personal time each morning. (Id.).
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calls," "Toggling between Talkdesk Statuses," and "Failure to outreach to members once clocked
in for the business day." (Id.). Devoted Health did not provide or reference any specific actions
attributed to Byrd under this category. Under "Misrepresentation of Working Hours," Devoted
Health stated:
(Id.).
Supervisor had scheduled a shadowing session prior to scheduled 1: 1 with [Byrd].
[Byrd] responded to supervisor that she rescheduled meets due to not being
available during that time. Supervisor explained the shadowing session was still on
as scheduled as [Byrd] has no other meeting during that time and was not scheduled
to be off. [Byrd] joined the meets late at 9: 15 and the supervisor explained that
being clocked in but not completing work is considered time theft and she would
review with HR and leadership. From 2/12/24 to 2/27/24 - [Byrd] has utilized 8
hours and 30 minutes not reached out to members at the start of her shift.
The Final Warning stated that " [a] disciplinary action for conduct remains in effect for 6
months ... Should the employee exhibit any behavior (related to this issue or not) requiring a
written warning within the next 6 [m]onths, further disciplinary action including termination may
be considered." (Id.). Devoted Health also provided a "Manager Evaluation" that included specific
action items for Byrd, including:
• 	De'borah will immediately refrain from misrepresenting hours worked including
but not limited to beginning outreach at the beginning of shift/clock in time,
toggling between talk desk statuses, excessive extended call gaps between calls,
and not exceeding lunches or breaks or other related actions that delay outreach.
• 	De'borah should immediately begin to inform her supervisor or covering supervisor
if she needs to step away from her desk for any time outside of her breaks, or
lunches or if the need for personal time exceeds 5 minutes per day and does not
exceed personal time usage more than 2 times per day. If [she] needs to utilize more
than 5 minutes of personal time [she] should clock out and/or return to outreach
immediately after 5 minutes has passed. If unable to clock out [she] should fill out
the missed punch form for the time card to be adjusted with accurate hours worked.
• 	De'borah will immediately begin to complete tasks/assignments assigned to her by
the leadership team.
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• 	[Byrd] should be open to feedback and coaching from members of the Leadership
team, including Managers, Supervisors, and Seniors.
(Id.).
On the same day that Byrd received this Final Warning, February 29, 2024, Byrd submitted
her accommodation request through the third-party provider, SunLife, as directed by Human
Resources. (Doc. No. 14-2 at 38-43). Byrd requested an accommodation for her frequent trips to
the restroom. Byrd stated:
I am able to perform my job functions. This accommodation wi ll help me, [i]f I
need to go to the bathroom at random, I do not want to be harassed at work, by my
supervisor repeatedly slacking me; telling me that I am taking to [sic] long a way
[sic] from my work station.
(Id. at 39). Byrd also stated that "I have informed my supervisor, and she accused me of stealing
time; since I have to use the bathroom longer than 5 min and said that was personal time." (Id.).
While the accommodation request remained pending, Pierce noted that Byrd continued to
make mistakes after she received the Final Warning. On February 29 , 2024, Pierce noted that Byrd
"did not complete confirmation calls" for the appointments despite several reminders to do so.
(Doc. No. 12-4 at 15). On March 5, 2024, Pierce described that Byrd was unable to log into her
computer that morning:
[Byrd] sent a message that she was unable to log into her computer. Provided [Byrd]
with a number to Corp IT. Update: 3/7/24 [Byrd] has not submitted [IT] ticket.
[Byrd] was clocked in at 8:25 am in workday and clocked out at 830 am on this
day. [Byrd] did not clock back in until 901 am. [Byrd] did submit the [m] issed time
punch form - but unsure why she clocked out of the system and signed out of her
laptop after clocking in. Did not clock back in until 9:01 am - There is concern
about why [B yrd] was clocked in but not lo gged into her laptop? [Byrd] did not
make the first call on this day until 930am. Even though her tech issues were
resolved by 835am - [Byrd] reach out 25 minutes later stating that her Looker was
not loading. To which I respond and asked [Byrd] to clear cache and cookies as
we ll as work to get connected to ethernet as previous screen shot of laptop did not
reflect [Byrd] was connected to ethernet. It does not take [the system] 30 minutes
to boot. [Byrd] is still displaying call avoidance behaviors one week after delivery
of Warning.
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(Id. at 12).
Pierce continued to document her issues with Byrd. Pierce noted that she was working in
the incorrect status on the internal management system and editing a template instead of her own
document. (Id. 	at 10- 11 ). On March 6, 2024, Pierce sent a calendar invitation for another
shadowing session, and Byrd declined the meeting invitation. (Id. a 9). Pierce sent the following
message to Byrd:
TI!bny Pierce - rn PM
Hi @De'borah -Wanted circle back on afew reminders :
• Whe nconfirming appoin tme nts we should be making 2call attem pts lo members -once in the morning and once in the afternoon -and sendi ng1SMS after the first attemp t if you are
unable toco nnect with member on the firs t call. This isoutlined inthe !HT Outreach Workflow Gu ide shared with you 2/21 and on 2/29.
• When calling members -we should fo llow QA guidelines and ve rify the membe(s Identity prior to releasing PH I.
• If amember profile reflects that they speak Spanish -the steps should be ~t you reach out in the i iht -mos-texas-pod and tag your peers who speak Spanish to ask that they please
confirm the Spanish speaking members on your assigned tech 'sschedule. This is to ens ure tha t members have the bes t experience when speaking with Devo ted.
o I reviewed afew confi rmations calls wh ere weare releasi ngPHI withou t verifyi ngIdentity an d/or speaking tomem bers who wo uldbenefi t from having someone wh ospeaks Spa nish
com plete the ir confirmation call for the best member experience and tech 'ssafety.
• During the confirmation call we are confirming that the dateandtime still works for the members, but we are also tocon fi rm that the member is healthy at the ti me of the visit for ou r
tech's safety. Pleas ebe su re to ask the MOS COVlD Protocol for In-Home Technklan (IHTI Appointments -sha red previously on2/21 andon 2/29 .
• Please be sure to pos t in the pod cou nt thread l0c.1ted inthe i iht-mos-tex.is-pod • that you have completed confirmations fo r your tech for the next day.
• If you haven' t already• please submit the ITticke t be fo re the end of th eday to day. If you have 't alrea dy su bmitte dplease add me to the ticke t for yes terday's clock-in tec hissue.
• Wehave ashadowing sessio nsc heduled for Fri day, March 8th at 9am. Please acce pt the Invite. During the sess ion th eask Is th at you share your screen and ou treach members. During this
time you are able to mute the me eting as we ll asturn off your came raas I fi ndthis to be more comfortable for MOS. Once we have comple ted shadowi ng we will meet at 930 am and I will
provide feedback from th eshadowing and answer anyquestions that you may have.AA email recap will be sen t to summar iz eour shadowi ng sess ion ,topics /tip sandtricks covered tha t
may behelpful .
Please let me know If you have an yquestio ns.Th anks so much
(Id.). Pierce noted that Byrd continued to demonstrate deficiencies with her work. Pierce described
that Byrd failed to follow to protocol to contact Spanish-speaking members, failed to ask "Covid
Protocol questions," and failed to confirm identify before releasing private health information. (Id.
at 8). Pierce also documented that Byrd declined to accept the invitation to an "All Hands Meeting"
after multiple reminders. (Id.).
Pierce also listened to several calls that Byrd made to members. Pierce made several
observations, including:
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• 	"After spending 22 mins on a previous call with the member - [Byrd] left av-mail letting
the member know the day and time did not work and she was canceling."
• 	"From the 53 second mark to the 2 min 09 [Byrd] sat in silence identifying a space to
schedule members in. Another call that does not align with [Byrd] searching for a space to
schedule members prior to calling."
• 	" [Byrd] does not demonstrate the ability to use appropriate tone when speaking with
members."
• 	Byrd "sat on voicemail 1 min and 20+ secs and did not say anything."
(Id. at 5- 6). Devoted Health provided a audio recording of one of these phone calls in support of
its Motion for Summary Judgment. (Doc. No. 12-8). On the phone call, Byrd spent nearly seven
minutes attempting to schedule an appointment for the member. (Id. 	at 6:27). Just as the
appointment was to be confirmed, a cell phone rings in the background and Byrd stated, "hold on
one second, hold on one second" and places the member on hold. (Id.). After waiting nearly fifteen
minutes on hold, the member ended the call. (Id. at 21 :02).
On March 8, 2026, Byrd attended the shadowing session with Pierce. (Doc. No. 12-4 at 3).
Pierce described the session:
(Id.).
Sent email recap to [Byrd] with Tips and best next steps moving forward. Called 8
members without looking to see where they could fit prior to calling. [Byrd] spent
time switching from screen to screen - 	without making an actual outreach on
multiple occasions. However, [Byrd] made 8 outreaches in a 30 minute time frame
she worked very efficiently through outreaches without long delays or long call
gaps in between members .... [Byrd] reached out for the first time today to request
someone reach out to the Spanish speaking members on her list.
During the time period that Pierce was monitoring Byrd's work, Byrd received her 2023
Annual Performance Review. (Doc. No. 14-1 at 5). Byrd was reviewed for the time period from
January 1, 2023 through December 31 , 2023 by her previous Manager, Eric Lowery. The Review
stated:
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(Id.).
De'borah has met and sometimes exceeded her performance standards during the
course of the year. ... De'borah excelled in listening to members and asking
questions to better ascertain the support the [] visit could provide to those members.
Her ability to simplify complex problems led to her being highly successful in
assisting members with high level outcomes. De'borah often used tools and
resources provided to her before reaching out but did not shy away from getting
support when needed .... She is quick to adapt to work flow changes and takes
great care to ensure that she is completing needs for members correctly. She often
uses her prior experience to guide her actions and assist members although it has
led to some occurrences of workflow corrections among other teams. She remains
accurate with documentation as well as thorough. De' borah maintained a year of
positive attendance although we did note some discussions regarding late to ready
at the end of the year. De'borah supported a growth mentality throughout the year
which allowed her to quickly adapt and provide feedback 	leading to 	many
improvements within the [] teams.
De'borah is often seen as a hard worker on her team. She often offers guidance to
other[s] [] in an attempt to support them and help them grow. De'borah does not
shy away from accepting responsibility for mistakes and attempts to correct them
quickly after understanding how it occurred and what she should do differently next
time. De'borah is very member focused and often provides support above her
required duties to ensure that members she is in contact with feel that Devoted is
treating them like family.
On March 8, 2024, SunLife sent a letter to Byrd 's home in response to her accommodation
request for frequent trips to the restroom. (Doc. No. 12-8). The letter requested more information
about her health condition and set out certain steps for her to take by April 2, 2024, to complete
the process. (Id.). The letter also stated that "Devoted is committed to engaging in an interactive
process with you about your accommodation requests and providing reasonable accommodations
in compliance with the ADA and other laws." (Doc. No. 12-9 at 12).
Nevertheless, on March 11 , 2024, Devoted Health terminated Byrd 's employment. (Doc.
No. 14-2 at 59); (Doc. No. 12-10 at 2). Katherine Newton, a Senior Director for the Human
Resources Department, provided a sworn declaration that stated:
Ms. Pierce made the decision to terminate Ms. Byrd 's employment, with the
approval of her manager Gabby Dominguez and Human Resources. Ms. Byrd 's
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employment was 	terminated 	because 	of her 	uncorrected poor performance,
including engaging in call avoidance behavior, failure to complete assigned tasks,
and because she placed a member on hold and misrepresented to the member that
she could not hear her (all while on a final warning). No protected category or
activity, including any request for leave or accommodation, was taken into
consideration in making any decision as to Ms. Byrd's employment. Ms. Byrd's
employment would have been terminated no matter any protected activity or
category.
(Id.). On the following day, Byrd filed a Charge of Discrimination with the Equal Employment
Opportunity Commission and the Texas Workforce Commission. (Doc. No. 12-11). Devoted
Health received a Notice of Charge of Discrimination on March 21, 2024. (Doc. No. 12-12).
On September 18 , 2024, the U.S. Equal Employment Opportunity Commission ("EEOC")
issued the Determination and Notice of Rights to Byrd and notified her of her right to sue. (Doc.
No. 14-2 at 65). On December 13 , 2024, Byrd filed the case against Devoted Health in this Court.
(Doc. No. 1). Byrd sued Devoted Health for discrimination and retaliation on the bases of race,
nationality, and disability under Title VII of the Civil Rights Act of 1964 ("Title VII") and the
Americans with Disabilities Act. (Id.). 	Byrd also sued Devoted Health for a hostile work
environment and the intentional infliction of emotional distress. (Id.). Devoted Health requests the
Court to dismiss each of these claims at the summary judgment stage of this litigation. The Court
addresses the Motion for Summary Judgment (Doc. No. 12) below.
II. 	Legal Standard
Summary judgment is warranted "if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law." FED. R. C1v. P.
56(a). "The movant bears the burden of identifying those portions of the record it believes
demonstrate the absence of a genuine issue of material fact." Triple Tee Golf, Inc. v. Nike, Inc.,
485 F.3d 253 , 261 (5th Cir. 2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986)).
Once a movant submits a properly supported motion, the burden shifts to the non-movant to show
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that the court should not grant the motion. Celotex, 477 U.S. at 321 - 25. The non-movant then must
provide specific facts showing that there is a genuine dispute. Id. at 324; Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). It is the responsibility of the parties to
specifically point the Court to the pertinent evidence, and its location, in the record that the party
thinks are relevant. Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003). It is not the duty of
the Court to search the record for evidence that might establish an issue of material fact. Id.
A dispute about a material fact is genuine if "the evidence is such that a reasonable jury
could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). The court must draw all reasonable inferences in the light most favorable to the
nonmoving party in deciding a summary judgment motion. Id. 	at 255. The key questi on on
summary judgment is whether there is evidence raising an issue of material fact upon which a
hypothetical, reasonable factfinder could find in favor of the nonmoving party. Id. at 248.
III. 	Analysis
Byrd brought discrimination claims on the bases of race, nationality, and disability under
Title VII of the Civil Rights Act of 1964 ("Title VII") and the Americans with Disabilities Act
("ADA"). (Id.). Byrd also sued Devoted Health for a hostile work environment and the intentional
infliction of emotional distress. (Id.). The Court addresses each of the claims below and hereby
GRANTS Devoted Health's Motion for Summary Judgment (Doc. No. 12) and dismisses this case
with prejudice.
A. Race and National Origin Discrimination
Byrd, a "Black and Nigerian" woman, (Doc. No. 14 at 8), alleges that Devoted Health
"engaged 	in 	unlawful 	employment 	practices 	when 	they 	discriminated 	or 	permitted 	their
supervisory employees to discriminate against Plaintiff in connect with the compensation, terms,
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conditions, and privileges of employment on account of her race or national origin." (Doc. No. 1
at 4 ). Title VII of the Civil Rights Act of 1964 ("Title VII") provides that "it shall be an unlawful
employment practice for an employer to ... discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such individual's race,
color, religion, sex, or national origin." 42 U.S .C. § 2000e-2(a)(l).
When a plaintiff does not allege direct evidence of discrimination, which is the case here,
courts apply the McDonnell Douglas burden-shifting framework. Davis v. Dallas Area Rapid
Transit, 383 F.3d 309, 316 (5th Cir. 2004) (citing McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (1973)). To establish a prima facie claim for race discrimination under Title VII, a
plaintiff must show that she (1) is a member of a protected group; (2) she was qualified for the
position at issue; (3) she was discharged or suffered some adverse employment action by the
employer; and ( 4) she was replaced by someone outside her protected group or she was treated
less favorably than other similarly situated employees outside the protected group. Ernst v.
Methodist Hasp. Sys., 1 F.4th 333, 339 (5th Cir. 2021). If the plaintiff establishes aprimafacie
claim, the burden shifts to the employer to offer a non-discriminatory reason for the adverse action.
Id. If the employer offers such a reason, the burden shifts back to the plaintiff to show that the
employer's provided reason is pretext for a discriminatory purpose. Id.
Devoted Health argues that Byrd has failed to state a prima facie claim for discrimination
on the basis of race or national origin because she has failed to demonstrate that she was replaced
by someone outside her protected group or that she was treated less favorably than other similarly
situated employees outside the protected group. Ernst, l F.4th at 339. The "similarly situated"
prong requires a plaintiff to show that she "was treated less favorably than other 'under nearly
identical circumstances. "' Morris v. Town ofIndep., 827 F.3d 396,401 (5th Cir. 2016). As a result,
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the practical effect is that "comparators must share the same job or responsibilities, the same
supervisor, the same conduct leading to the adverse decisions, and essentially comparable violation
histories." Ray v. United Parcel Serv. , 587 Fed. App 'x 182, 194 (5th Cir. 2014). If a plaintiff
cannot meet their burden in establishing a prima facie case of discrimination, the Court need not
reach the subsequent burden-shifting analysis under McDonnell Douglas. Sanders v. Regions
Bank, No. 4:22-CV- 1523 , 2024 WL 2159961 , at *4 (S.D. Tex. May 14 , 2024).
Byrd argues that "[o]ther employees with worse performance than 	[her] 	were not
disciplined" and provides what appears to be a screenshot of a chart as support. (Doc. No. 14 at
8). This "chart" is unauthenticated by any sworn testimony and appears to be an excel sheet with
metrics for twelve employees, including Byrd, from February 20 , 2024, to February 23 , 2024.
(Doc. No. 14-2 at 1). The metrics include outreach attempts, "Appts (Intl & Rs)," conversion rate,
connection rate, and call gap average. (Id.). While Byrd argues that this chart establishes a genuine
dispute of material fact that she was treated less favorably than employees outside the protected
class, Byrd offers no evidence to explain the meaning of this data or establish how this data was
collected, nor does she provide any evidence that these employees were outside the protected class
and/or were treated any more favorably. Byrd simply provided an unauthenticated document with
the names of unknown people associated with unknown numbers. As the Fifth Circuit has
repeatedly advised, "[w]hen a plaintiff gives only a conclusory explanation about why an
individual is an appropriate comparator, the plaintiffs discrimination claim fails." Shahrashoob v.
Texas A&M Univ., 125 F.4th 641, 652 (5th Cir. 2025) (emphasizing "what the record doesn't
reflect," including the job title, responsibilities, supervisor information, or other attributes to
establish that the comparator was similarly situated). In this case, the record does not reflect any
information required to establish these eleven people as comparators and the single vague chart is
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insufficient to support a prima facie claim for discrimination on the basis of race or national origin
under Title VII.
B. 	Disability Discrimination
Second, Byrd alleges that Devoted Health unlawfully discriminated against her on the basis
of her disability. The ADA prohibits an employer from discriminating against a "qualified
individual on the basis of a disability." 42 U.S.C. § 12112(a). When there is no direct evidence of
disability discrimination, the Court analyzes a disability discrimination claim under the McDonnell
Douglas framework as outlined above. Bennett v. Dallas Indep. Sc h. Dist., 936 F. Supp. 2d 767,
776 (N.D. Tex. 2013). Under McDonnell Douglas, plaintiffs must first establish a primafacie case
of discrimination. Melton v. Dallas Ar ea Rapid Transit, 391 F.3d 669, 671 (5th Cir. 2004). If the
plaintiff does, the burden shifts to the employer to "articulate a legitimate, nondiscriminatory
reason" for its actions. EEOC v. LHC Grp. , Inc., 773 F.3d 688, 694 (5th Cir. 2014). The burden
then shifts back to the plaintiff to prove that the employer's explanation was a pretext for
discrimination. Id. at 694, 702.
1. 	Byrd has established a primafacie case of discrimination.
The Court finds that Byrd has established a prima faci e case of disability discrimination.
"To establish a prima facie discrimination claim under the ADA, a plaintiff must prove: (1) that
[s]he has a disability, (2) that [s]he was qualified for the job, and (3) that [s]he was subject to an
adverse employment decision on account of [her] disability." LHC Grp. , Inc., 773 F.3d at 697.
As to the first element, Byrd provided summary judgment evidence from her medical
professionals that she has a documented history with anxiety, depression, PTSD, and post-surgery
complications that cause frequent bathroom use. See (Doc. No. 	14-2 at 24) (describing her
experience with abdominal discomfort, heartburn, difficulty with certain foods); (Doc. No. 14-2 at
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30) (describing her mental health history). Under the ADA, "disability" means: "(A) a physical or
mental impairment that substantially limits one or more major life activities of such individual;
(B) a record of such impairment; or (C) being regarded as having such an impairment." 42 U.S.C.
§ 12102(1). Major life activities include, but are not limited to, caring for oneself, performing
manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking,
breathing, learning, reading, concentrating, thinking, communicating, and working. 42 U.S.C.A. §
12102(3). Byrd presented evidence that after returning from FMLA leave due to her abdominal
surgery, she returned with mental and physical trauma, including increased anxiety, depression,
PTSD, and frequent trips to the bathroom that limited her abilities to eat and work. Accordingly,
the Court finds that there is a genuine dispute of material fact as to whether Byrd has a disability
under the AD A.
As to the second element, Devoted Health does not dispute that Byrd was qualified for her
position as a Member Outreach Specialist. Even so , Byrd provided summary judgment evidence
that in her two previous annual reviews, Devoted Health noted that she had met and sometimes
exceeded expectations and presented several specific examples of her competency in the role. See
(Doc. No. 14-1 at 1- 8). The Court finds that this evidence creates a genuine dispute of material
fact that Byrd was qualified for her position.
Lastly, Byrd contends that she was terminated from the position on account of her
disability. In support of her position, Byrd directs the Court to Pierce' s accusations that she was
"stealing time" by frequently using the bathroom on the clock and that in order to use the bathroom
more often than the two allotted 15 -minute periods per day, Byrd would need an official disability
accommodation. See, e.g., (Doc. No. 12-2 at 21 - 23). Byrd argues that these accusations were also
included in her Final Warning. (Doc. No. 12-7) (Final Warning) ("[T]he supervisor explained that
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being clocked in but not completing work is considered time theft."). Byrd further directs the Court
to the temporal proximity between the dispute with Pierce related to her bathroom breaks on
February 27, 2024, (Doc. No. 12-2 at 21 - 23), her application for an accommodation to take
additional breaks on February 29 , 2024, (Doc. No. 14-2 at 38--43), and her termination on March
11 , 2024. (Doc. No. 14-2 at 59). Recognizing that the burden on plaintiffs at the primafacie stage
is "not onerous," Ramirez v. PHI Health, LLC, 762 F.Supp.3d 596, 611 (S.D. Tex. 2025) (citing
Young v. United Parcel Serv. , Inc., 575 U.S. 206, 228 (2015)), the Court finds that Byrd has
established a prima facie case for disability discrimination.
2. 	Devoted Health articulated a legitimate, nondiscriminatory reason for termination.
Having found that Byrd has established a prima facie case for disability discrimination, the
burden shifts to Devoted Health to articulate a legitimate, nondiscriminatory reason for the
termination of her employment. Mueck v. La Grange Acquisitions, L.P. , 75 F.4th 469, 484 (5th
Cir. 2023). The Fifth Circuit has recognized that " [t]erminating an employee whose performance
is 	unsatisfactory 	according 	to 	management's 	business 	judgment 	is 	legitimate 	and
nondiscriminatory as a matter of law." Ramirez, 762 F.Supp.3d at 611 (quoting LHC Grp., 773
F.3d at 701 - 02). 	Furthermore, the Fifth Circuit has "repeatedly recognized that poor job
performance is a legitimate, nondiscriminatory reason for firing an employee." Id. 	(quoting
Benjamin v. Felder Servs., LLC, 753 Fed. App 'x 298, 302 (5th Cir. 2018)).
Devoted Health produced evidence that when Byrd returned from FMLA leave, her work
performance declined. After she received a two-day training course on the new programs, Byrd
continued to make scheduling mistakes and had to frequently meet with her supervisors. (Doc. No.
12-2 at 14- 15); (Doc. No. 12-4 at 20). Devoted Health presented evidence that even after those
meetings, Byrd failed to complete assignments, (Doc. No. 12-4 at 20), rescheduled or failed to
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attend one-on-one training sessions, (id. at 16-18), and spent significant amounts of " no outreach"
time in the morning, (id. at 18- 20). These concerns were memorialized in the Final Warning
presented to Byrd, which stated that Byrd failed to complete assigned tasks, failed to prevent call
avoidance, 	failed 	to 	demonstrate 	accountability 	and 	ownership, 	failed 	to 	demonstrate
organizational skills, and misrepresented working hours. (Doc. No. 12- 7). Devoted Health also
presented evidence that after the Final Warning was 	issued, Byrd continued to 	schedule
appointments incorrectly, (Doc. No. 12-4 at 8- 9, 15) , declined meetings, (id. at 9) , and failed to
follow protocols on her calls with the members. S ee (id. at 5- 6) (Doc. No. 12-8) (audio recording).
Devoted Health relies on the audio recording of one phone call made after Byrd received
her Final Warning to demonstrate the deterioration of her work performance. (Doc. No. 12-8). On
the phone call, Byrd spent nearly seven minutes attempting to schedule an appointment for the
member. (Id. at 6 :2 7). In her attempt to schedule the appointment, Byrd seemed disorganized and
inefficient, leaving long moments of silence between her and the member as she was "looking" fo r
an open available spot. (Id.) . Just as the appointment was to be confirmed, the audio captured a
cell phone ringing in the background and Byrd stated, "hold on one second, hold on one second"
and placed the member on hold. (Id.). After waiting nearly fifteen minutes on hold without any
communication from Byrd, the member ended the call. (Id. at 21 :0 2).
The Court finds that the evidence produced by Devoted Health articulates legitimate,
nondiscriminatory reasons for the termination of By rd 's employment. See LHC Grp., 773 F.3d at
701 - 02.
3. 	There is no genuine dispute of material fact that the legitimate, nondiscriminatory
reasons were pretext for disability discrimination.
Having determined that Devoted Health articulated legitimate, nondiscriminatory reasons
for the termination, the burden shifts back to Byrd to show that Devoted Health's reasons were a
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pretext for disability discrimination. Id. 	at 702. To satisfy this burden, Byrd "must present
'substantial evidence' that the employer's legitimate, nondiscriminatory reason for termination is
pretextual." Delaval v. PTech Drilling Tubulars, LL C, 824 F.3d 476, 480 (5th Cir. 2016). "Pretext
is established ' either through evidence of disparate treatment or by showing that the employer's
proffered explanation is false or "unworthy of credence.'" " Id. (quoting Laxton v. Gap Inc., 333
F.3d 572, 578 (5th Cir. 2003)). "An explanation is false or unworthy of credence if it is not the
real reason for the adverse employment action." Laxton, 333 F.3d at 578. "Evidence is substantial
if it is of such quality and weight that reasonable and fair-minded men in the exercise of impartial
judgment might reach different conclusions." Wallace v. Seton Fam. of Hasps. , 777 Fed. App ' x
83 , 89 (5th Cir. 2019).
Byrd argues that the reasons addressed in the Final Warning were pretext for disability
discrimination because (1) her metrics exceeded those of non-disabled employees who were
retained, 	(2) 	all 	discipline 	occurred 	within 	days 	of disclosing 	disability 	and 	requesting
accommodation, (3) the lack of progressive discipline, and (4) her history of positive reviews. 3
The Court finds that, on balance, this evidence does not create a genuine dispute of material fact
that the alleged reasons for the termination were pretext for disability discrimination.
As a preliminary matter, the Court does not consider the metrics of other employees as
sufficient evidence of pretext. 	While evidence of disparate treatment can be proven with
comparator evidence, such evidence must be sufficiently explained to demonstrate that Byrd was
treated 	differently, 	and 	worse, than 	non-disabled 	employees. 	See 	Mueck, 	75 	F.4th 	469.
3 Byrd also states that "Ms. Pierce' s Admission of Animus" is evidence of pretext. (Doc. No. 14
at 8). Nevertheless, the document cited as support for the asse1iion that Pierce was allegedly
"[b]ragging about ' winning' regardless of being ' wrong "' was not included in the summary
judgment record. (Id.). Accordingly, the Court cannot consider this argument.
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Nevertheless, as explained above, the single chart provided by Byrd to support this argument is a
vague, unauthenticated, and unexplained list of people with associated data. The Court finds that
this "evidence" is insufficient to show pretext.
The Court next addresses the issue of temporal proximity. Byrd argues that the temporal
proximity between the disclosure of her disability, her request for accommodation, and her
termination are evidence of pretext. The Fifth Circuit has recognized that "a plaintiff can show
pretext through temporal proximity plus significant record evidence." Shahrashoob , 125 F.4th at
641. "Although ' [t]iming standing alone is not sufficient absent other evidence of pretext,' the
'combination of suspicious timing with other significant evidence of pretext, can be sufficient to
survive summary judgment. "' Davis v. Indep. Contract Drilling, Inc., No. 4:16-CV-00252, 2019
WL 12000808, at *9 (S.D. Tex. Mar. 14 , 2019) (quoting Burton v. Freescale Semiconductor, Inc. ,
798 F.3d 222, 240 (5th Cir. 2015)). In this case, the relevant timeline is as follows:
• 	February 27, 2024: Byrd attempted to reschedule a meeting because she was in
the bathroom and that she required additional bathroom breaks due to her recent
abdominal surgery. (Doc. No. 12-4 at 16) . Pierce informed Byrd that she needed to
contact Human Resources and request an official accommodation for additional
bathroom breaks. (Doc. No. 12-4 at 18) ; (Doc. No. 12-2 at 23).
• 	February 27, 2024: Byrd contacted Human Resources and reported that due to her
recent surgery, she needed to use the bathroom more frequently in the mornings.
(Doc. No. 12-6). Human Resources directed Byrd to submit an accommodation
request through the third-party agency, SunLife, if she needed more bathroom
breaks. (Id.).
• 	February 29, 2024: While it is unclear as to which occurred first, Byrd submitted
an application for accommodation to use the bathroom more frequently at 10: 16
AM, see (Doc. No. 14-2 at 43) (showing the timestamp for the signature), and
Devoted Health issued the Final Warning to Byrd at some point that day. (Doc. No.
12-7).
• 	March 8, 2024: SunLife sent a letter to Byrd to request more information about her
accommodation request. (Doc. No. 12-8).
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• 	March 11, 2024: Devoted Health terminated Byrd's employment. (Doc. No. 14-2
at 59).
The timeline indicates that the Final Warning came only two days after Byrd revealed her
need for an accommodation and two days after she was directed by Pierce and Human Resources
to seek an official accommodation. Moreover, the actual termination occurred only three days after
SunLife began the interactive process and less than two weeks after Byrd first revealed her
accommodation to Devoted Health. The Court finds that this temporal proximity is evidence that
the reasons listed in the Final Warning were pretext for disability discrimination. Nevertheless, as
temporal proximity alone cannot establish pretext, the Court reviews Byrd' s other material.
Byrd also argues that the lack of progressive di scipline shows that the Final Warning was
pretext for discrimination. Based on the record before the Court, Byrd never received any
disciplinary action or other formal notice that her work was inadequate before she received the
Final Warning less than two weeks before her termination. (Doc. No. 12-7). After Byrd joined the
new team after her FMLA leave, she received two days of training and was explicitly told by the
software trainers at Devoted Health that mistakes were to be expected with the new system. (Doc.
No. 12-2 at 11 - 12) ("We were told not to worry about it and they kept emphasizing the don 't - oh,
this is new for you-all, don't worry. They just kept saying if you have any questions, just reach out
in the Chat."). Nevertheless, Byrd received the Final Warning on February 29 , 2024, in part, for
her scheduling errors on the new software. (Doc. No. 12-7).
While those facts may be true, the lack of progressive discipline is only relevant to the
pretext inquiry if the plaintiff can show that Devoted Health failed to follow its own progressive
discipline policy. See, e.g., Salazar v. Lubbock Cnty. Ho sp. Dist. , 982 F.3d 386, 390 (5th Cir. 2020)
("Termination of an employee that does not proceed pursuant to an employer's progressive
discipline may give rise to an inference of pretext."). Byrd did not supply any evidence that
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Devoted Health maintained a formal disciplinary polic y, and even if it did, Byrd provided no
evidence that Devoted Health did not follow that policy. Even assuming that Devoted Health did
not follow its progressive discipline policy, the Court notes that Pierce made several attempts to
correct Byrd' s performance errors. Pierce scheduled one-on-one meetings and shadowing sessions
with Byrd to review her scheduling errors, (Doc. No. 12-2 at 14); (Doc. No. 12-4 at 16) , held team
meeting to discuss call avoidance practices, (Doc. No. 12-7), issued the Final Warning with
specific action items, (id.) , and sent messages with reminders about scheduling practices and other
work policies, (Doc. No. 12-4 at 9). The Court finds that the lack of evidence to support a claim
that Devoted Health failed to follow its own progressive discipline policy (or even had such policy
in place), as well as the undisputed record that Devoted Health made repeated attempts to work
with Byrd to correct the performance-related errors, fail to establish evidence of pretext.
Lastly, Byrd contends that her two prior Annual Performance Reviews in 2022 and 2023 ,
as well as her awards in November and December of 2023 , create a genuine dispute of material
fact 	that the performance-related reasons outlined in the Final 	Warning were pretext for
discrimination. Byrd is correct that in both 2022 and 2023, her supervisors observed that she met
or sometimes exceeded expectations. (Doc. No. 14-1). In 2022, her supervisor wrote that Byrd
"asks great questions in order to better understand processes." (Id.). 	In 2023 , her previous
supervisor (before she went out on FMLA leave) wrote that Byrd "excelled in listening to members
and asking questions" and complimented her "ability to simplify complex problems," "adapt to
work flow changes," and "use[] her prior experience to guide her actions and assist members."
(Id.). Byrd received her 2023 Annual Performance Review on March 7, 2024- 	just four days
before her termination. (Id. at 6). Byrd also provided evidence that she was recognized on a few
occasions for completing the most calls on her team in a one-week period. See (Doc. No. 14-2 at
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5- 10). Byrd argues that the content of these positive re views, and the temporal proximity between
her 2023 review and her termination, are evidence of pretext.
Complicating her position, however, is that these performance reviews did not cover the
relevant time period of her employment or any of her work on the new team. Devoted Health does
not claim that Byrd was failing to meet expectations in 2022 or 2023. Devoted Health maintains
that these performance-related issues arose when Byrd returned from FMLA leave and joined a
new team. While Byrd received the positive 2023 Annual Performance Review in March 2024,
the review was prepared by her previous supervisor on her previous team for the time period
between January 1, 2023 and December 31 , 2023. (Id. at 5). While the Review listed Pierce as her
manager, the Review started that she was evaluated by her previous supervisor, Eric Lowery. (Id.).
There is no evidence that Pierce wrote, reviewed, or approved the Review. Accordingly, the 2023
Annual Performance Review did not address any work performed in 2024 or any of the repeated
errors in her work noted by Pierce. While the Court can consider evidence of positive performance
evaluations to support a finding of pretext, the Court notes that all of the concerns regarding Byrd's
work performance listed in the Final Warning occurred two to three months after the time period
for which she received the positive review.
Even assuming, arguendo , that the Court considers the previous positive reviews as
evidence of pretext, the Court finds that the combination of the reviews and the temporal proximity
does not rise to the level of "substantial evidence" that "is of such a quality and weight that
reasonable and fair-minded men in the exercise of impartial judgment might reach different
conclusions." Wallace , 777 Fed. App'x at 89. Without substantial evidence of pretext, there is no
genuine dispute of material fact that Devoted Health discriminated against Byrd on the basis of
her disability. This claim is dismissed with prejudice.
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C. Retaliation
Byrd also brought a retaliation claim against Devoted Health. While the Complaint is
certainly not a "model of clarity," the Court interprets this claim (along with the arguments in the
summary judgment briefing) as an ADA retaliation claim. Se e Harvey v. Montiel, No. 25-40127,
2026 WL 483286, at * 1 (5th Cir. Feb. 20 , 2026). The ADA prohibits an employer from
"discriminat[ing] against any individual because such individual has opposed any act or practice
made unlawful by [the ADA] or because such individual made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under [the ADA]." Lyons v.
Katy Indep. Sch. Dist. , 964 F.3d 298, 304 (5th Cir. 2020) (quoting 42 U.S.C. § 12203(a)). "When
a plaintiff presents indirect evidence of unlawful retaliation under the ADA, we apply the burden-
shifting scheme established in McDonnell Douglas." Id. 	To establish a prima facie case of
unlawful retaliation under the ADA, the plaintiff must show that: (1) she engaged in an activity
protected by the ADA, (2) she suffered an adverse employment action, and (3) there is a causal
connection between the protected activity and the adverse action. Id.
The Court finds the analysis to be nearly identical to the discussion above with one
exception. In order to establish a prima facie case of retaliation, the plaintiff must show that the
decisionmakers had knowledge of the protected activity. Tureaud v. Grambling State Univ., 294
Fed. App 'x 909, 914 (5th Cir. 2008) (" To establish a ' causal link' because the protected activity
and the adverse employment decision, the evidence must demonstrate that the decision maker had
knowledge of the protected activity."). In this case, Byrd must show that the actual decisionmakers
at Devoted Health had knowledge that she requested the accommodation through SunLife. While
Human Resources and Pierce both directed Byrd to apply for a formal accommodation, there is no
evidence on the record that indicates that either Pierce or the other individuals involved in the
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termination had actual knowledge that Byrd submitted an application to SunLife. Cf Leggio v.
Ochsner Clinic Found. , 2023 WL 2955310, at *13 (E.D.L.A. Apr. 14, 2023) (describing summary
judgment evidence that SunLife emailed the defendant company that the plaintiff had requested
an accommodation). Byrd has not provided any evidence that SunLife communicated with
Devoted Health about her accommodation request or that Pierce and/or Human Resources
otherwise had knowledge that she actually submitted the request.
Even assuming, arguendo , that Byrd has established a prima facie case of retaliation, which
this Court does not, Byrd falls short at the pretext stage of this inquiry. As discussed above, even
though 	the 	temporal 	proximity 	between the 	disclosure 	of her 	disability, her request 	for
accommodation, and her termination does present some evidence of pretext, the temporal
proximity does not rise to the level of "substantial evidence" that " is of such a quality and weight
that reasonable and fair-minded men in the exercise of impartial judgment might reach different
conclusions." Wallace , 777 Fed. App'x at 89; Lyons, 964 F.3d at 307 ("This ' very close' temporal
proximity is sufficient to establish the ' causal connection' element of her prima facie case, but it
is insufficient to demonstrate pretext. "' ). Without substantial evidence of pretext, there is no
genuine dispute of material fact that Devoted Health retaliated against Byrd for her participation
in protected activities. This claim is dismissed with prejudice.
D. Failure to Accommodate
As the Court earlier noted, the Complaint is certainly not the "model of clarity." See
Harvey , 2026 WL 483286, at * 1. Devoted Health has asked the Court to dismiss the "failure to
accommodate" 	claim. 	Byrd 	responded 	in 	opposition. 	While 	the 	Complaint 	only 	lists
"discrimination 	on 	the 	bases 	of race, 	nationality, 	retaliation, 	and 	hostile 	environment,"
"discrimination on the basis of disability," and "intentional infliction of emotional distress," as the
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causes of action, the Court acknowledges that By rd alleges that "she requested accommodation
but was denied." (Doc. No. 1 at 4). To the extent that By rd pleaded a failure to accommodate claim
under the ADA, the Court grants the Motion for Summary Judgment and dismisses the claim with
prejudice.
To prevail on a failure to accommodate claim, a plaintiff must prove that (1) she was a
qualified individual with a disability; (2) that the disability and its consequential limitations were
known to the defendant; and (3) the defendant failed to make reasonable accommodations for those
known limitations. Se e Weber v. BN SF Ry. Co ., 989 F.3d 320, 323 - 24 (5th Cir. 2021). When a
disability is known and "an employer's unwillingness to engage in a good faith interactive process
leads to a failure to reasonably accommodate an employee, the employer violates the ADA."
Harmon v. Collier, 158 F.4th 595, 611 (5th Cir. 2025). "An employer may not stymie the
interactive process of identifying a reasonable accommodation for an employee's disability by
preemptively 	terminating 	the 	employee 	before 	an 	accommodation 	can 	be 	considered 	or
recommended." Id. (quoting Cutrera v. Bd. of Supervisors of La. State Univ., 429 F.3d 108 , 113
(5th Cir. 2005)).
In 	this 	case, 	Byrd 	contends 	that 	" [t]erminating 	an 	employee 	to 	avoid 	providing
accommodation is the ultimate failure to accommodate." (Doc. No. 14 at 15). While, in theory,
that may be the case, Byrd has failed to present enough evidence to create a genuine dispute of
material fact that the goal of the termination was to avoid the accommodation. Byrd relies on the
same arguments that she set out in support of her disability discrimination claim. While there was
significant temporal proximity between her application for accommodation and her termination,
there is no evidence that suggests the termination was to prevent Byrd from taking additional
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breaks at work. Indeed, the evidence demonstrates that Devoted Health encouraged Byrd to
formally seek an accommodation.
Additionally, there is no evidence that Devoted Health's unwillingness to engage in the
interactive process resulted in the termination. On February 29, 2024, Byrd submitted a bare-boned
application for an accommodation to SunLife. (Doc. No. 14-2 at 38-43). She did not provide any
medical documentation or any specific information related to her disability other than she may
"need to go to the bathroom at random." (Id.). On March 8, 2024, SunLife responded with a request
for further information. (Doc. No. 12-8). Byrd did not respond to the inquiry before she was
terminated, and while that temporal proximity may suggest pretext, the temporal proximity does
not create a genuine dispute of material fact that the goal of the termination was to avoid
accommodation.
This conclusion is furthered by the substantial evidence presented by Devoted Health that
Byrd was consistently missing the mark in her work performance. As discussed above, Byrd had
been consistently reminded and warned by Pierce that the scheduling errors, call avoidance
behaviors, 	failure 	to 	attend 	required 	meetings, 	and 	significant 	"no 	outreach" 	time 	were
problematic. Devoted Health also presented an audio recording of a call during which Byrd left a
member on hold for over fifteen minutes for no apparent reason. (Doc. No. 12 - 8). The Court finds
that, on balance, there is no genuine dispute of material fact that the termination was not an attempt
to escape the interactive process. Accordingly, the Court dismisses this claim with prejudice.
E. 	Hostile Work Environment
The Court next addresses Byrd' s hostile work environment claim against Devoted Health.
Byrd alleges that Devoted Health fostered a hostile work environment connected to her disability
and other protected activity. To state a hostile work environment claim, "the plaintiff must show
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that: (1) the victim belongs to a protected group; (2) the victim was subjected to unwelcome
harassment; (3) the harassment was based on a protected characteristic; (4) the harassment affected
a term, condition, or privilege of employment; and (5 ) the victim's employer knew or should have
known of the harassment and failed to take prompt remedial action." EEOC v. WC&M Enterprises,
Inc. , 496 F.3d 393 , 399 (5th Cir. 2007). Byrd must make a sufficient showing that a genuine issue
of fact exists, or conclusively establish, all five elements. See Johnson v. PRIDE Indus ., In c., 7
F.4th 392, 404 (5th Cir. 2021).
While the Court has concluded that Byrd is a member of a protected group, the Court finds
that Byrd has failed to create a genuine dispute of material fact for any other element of the hostile
work environment claim. Byrd argues that through "death imagery" memes, harassment, "mockery
of medical conditions," and "forcing interactions during medical episodes," Devoted Health
created a workplace that was "permeated with discriminatory intimidation, ridicule, and insult,
that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create
an abusive working environment." Stewart v. Miss. Transp. Comm 'n, 586 F.3d 321 , 328 (5th Cir.
2009). Nevertheless, "[w]orkplace conduct 'is not measured in isolation ,"' and the Court must
consider "the frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes
with an employee' s work performance." Hernandez v. Yellow Transp. , Inc. , 670 F.3d 644, 651
(5th Cir. 2012) (quoting Ramsey v. Henderson , 286 F.3d 264, 268 (5th Cir. 2002)).
As a preliminary matter, the Court has already discussed, at length, the allegations that
Pierce mocked her medical condition or forced her to interact during medical episodes. In large
part, this boils down to the single interaction when Byrd attempted to reschedule the shadowing
session due to her need to use the bathroom and Pierce accused her of "stealing time." Byrd argues
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that this contributed to a hostile work environment. Nevertheless, as the Court has discussed, this
interaction stemmed from a scheduled meeting that Byrd attempted to unilaterally reschedule
without explanation. After Byrd provided explanation, the interaction ended and both Pierce and
Byrd reached out to Human Resources. Based on the record before the Court, while there is
evidence that Pierce said that Byrd was "stealing time" by not working while she was on-the-clock,
there is no evidence that Pierce made any offensive remarks about her disability or other protected
status. "This is not the kind of conduct that wou ld interfere unreasonably with a reasonable
person' s work performance or destroy her opportunity to succeed in the workplace." Stewart, 586
F.3d at 330. This type of one-on-one animosity or conflict cannot support a hostile work
environment claim. Kidd v. City of Houston , 2019 WL 6913317, at *7 (S.D. Tex. Feb. 7, 2019)
("An acrimonious relationship with a supervisor, in the absence of any evidence of unlawful
discrimination, does not give rise to a claim under Title VII." ). Offord v. City of Fulshear, No. H-
19-2386, 2020 WL 4227423 , at *2 (S.D. Tex. July 22 , 2020) ("Ordinary co-worker friction and
inconveniences at work, although unpleasant, do not equate to hostility." ); Schumacher v. City of
Round Rock, Tex., No. l:18-CV-334, 2019 WL 13275424, at *4 (W.D. Tex. Jan. 17 , 2019)
("Isolated incidents, unless extremely serious, do not rise to the level of creating a hostile work
environment." ).
Byrd also argues that after she disclosed her sister-in-law' s cancer and her own medical
conditions, Pierce "posted disparaging remarks and obscene cartoon images about death in the
team slack channel." (Doc. No. 14 at 12) . She argues that "[f]or someone dealing with medical
issues and family cancer, death imagery is particularly threatening and severe." (Id.). Nevertheless,
the Court finds that the "cartoon images" in question are hardly "death depicting." (Doc. No. 14-
2 at 35). While there was no context shared to these conversations, the screenshot shows that one
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employee posted a photo with the caption "rising from the grave." (Id.). The post received several
laughing and prayer-emoji reactions.
(Kie) Kierra Abraham IHT ··· 	a:03 AM
I
Posted using /giphy I
><. 4 	3
(Id.). Byrd also provided a photo posted by Pierce with the caption: "Me 1 - Grim Reaper - O! "
Tiffany Pierce 	:Os AM
Me 1 - Grim Rea per • O!
(Id.). Byrd does not provide the context for these photos, and she did not provide any evidence
about the recipients of these photos, the conversation surrounding these photos, or whether these
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photos were directed towards her or pertained to her at all. When Byrd was asked in her deposition
whether she believed these memes were posted due to her race, national origin, or disability, or
even directed towards her personally, she testified: "I don' t know." (Doc. No. 12-2 at 30).
Finding no evidence on the record to show that these photos were directed at Byrd or
pertained to Byrd at all and finding no evidence to explain the context of these photos, the Court
finds that these posts are not "both objectively and subjectively offensive, one that a reasonable
person would find hostile or abusive, [or] one that the victim did perceive to be so " or "the kind
of conduct that would interfere unreasonably with a reasonable person's work performance or
destroy her opportunity to succeed in the workplace," as required to establish a hostile work
environment claim. Hernandez, 670 F.3d at 651; Stewart, 586 F.3d at 330.
Having determined that the conduct described by Byrd does not rise to the level of a hostile
work environment, the Court dismisses this claim with prejudice.
F. 	Intentional Infliction of Emotional Distress
Lastly, the Court addresses Byrd's intentional infliction of emotional distress claim. In her
Complaint, Byrd alleges that "Defendant intentionally or recklessly, through its employee,
inflicted emotional distress on the Plaintiff when it terminated the Plaintiffs job after the Plaintiff
requested accommodation due to her mental disability." (Doc. No. 1 at 5). It is well-settled that
intentional infliction of emotional distress is "a gap-filler tort," judicially created to allow recovery
in the rare case where a defendant intentionally inflicts severe emotional distress in such an unusual
manner that no other theory of recovery is available to the victim. Hoffmann- La Roche, Inc. v.
Zeltwanger, 144 S.W.3d 438,447 (Tex. 2004). The tort was created "to supplement existing forms
of recovery by providing a cause of action for egregious conduct that might otherwise go
unremedied." Id. An intentional infliction of emotional distress claim is not available, however,
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where the underlying conduct is covered by another statutory scheme. "If the gravamen of a
plaintiffs complaint is the type of wrong that the statutory remedy was meant to cover, a plaintiff
cannot maintain an intentional infliction claim regardless of whether he or she succeeds on, or
even makes, a statutory claim." Hoffmann- La Roche, 144 S.W.3d at 448 . The availability of other
remedies --eve n if they do not explicitly preempt the tort-" leaves no gap to fill." Creditwatch v.
Ja ckson, 157 S.W.3d 814, 816 (Tex. 2005).
In this case, the Complaint clearly bases the intentional infliction of emotional distress
claim on the same factual allegations that underpin her discrimination and retaliation claims. "The
complaint does not allege any conduct to support her intentional infliction of emotional distress
claim that differs from that underlying her state and federal discrimination claims." Mcnamee v.
Cellular Sales of Tex., No. 4:13-CV-741 , 2014 WL 97390, at *3 (N.D. Tex. Jan. 9, 2014).
Accordingly, her remedies are limited to those under the ADA and Title VII, and this claim is
dismissed with prejudice.
IV. 	Conclusion
For the foregoing reasons, the Court hereby grants Devoted Health's Motion for Summary
Judgment on each of the causes of action. The Court dismisses this civil action with prejudice and
will enter a separate judgment compliant with Federal Rule of Civil Procedure 58(a).
It is so ordered.
Signed on this the __i_ day of May 2~u~
Andrew S. Han en
United States District Judge
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