5th Cir. Pattern Jury Instr. (Civil) 11.9

Work Environment—Negligence)

1

A. Committee Notes

1In Flowers v. S. Reg’l Physician Servs., Inc. , 247 F .3d 229, 235–36

(5th Cir. 2001), the Fifth Circuit recognized a cause of action under the

ADA for disability harassment. Recent case law in related contexts

indicates that Flowers remains good law. See, e.g., Carder v. Cont’l Airlines ,

636 F .3d 172, 178 (5th Cir. 2011) (citing Flowers in explaining why the

Uniformed Services Employment and Reemployment Act does not create a

cause of action based on hostile work environment, as the ADA and Title

VII do). But see Bennett v. Dallas Indep. Sch. Dist. , 936 F . Supp. 2d 767,

789 (N.D. Tex. 2013) (discussing Carder and positing that in November of

2011, Congress amended part of the USERRA and that it might now

include a cause of action based on hostile work environment). Although

tried shortly after Faragher and Ellerth were decided, Flowers appears to

have been tried solely under a negligence theory . The Fifth Circuit’s decision addresses only the negligence theory of disability harassment. In

Credeur v. La. Through Office of Att’y Gen. , 860 F .3d 785 (5th Cir. 2017),

the Fifth Circuit reassured that a plaintiff may bring a disability-based

harassment claim under the ADA. 860 F .3d at 796. The Court quoted

Flowers, stating:

To establish a prima facie case of disability-based harassment, a

plaintiff must demonstrate: (1) that she belongs to a protected group;

(2) that she was subjected to unwelcome harassment; (3) that the

harassment complained of was based on her disability or disabilities;

(4) that the harassment complained of affected a term, condition, or

privilege of employment; and (5) that the employer knew or should

have known of the harassment and failed to take prompt remedial

action. Flowers, 247 F.3d at 235–36. Further, the “harassment must

be sufficiently pervasive or severe to alter the conditions of employment and create an abusive working environment.’’ Id. at 236. In

determining whether a work environment is abusive, we consider

the entirety of the evidence in the record, including “the frequency of

the discriminatory conduct, its severity, whether it is physically

threatening or humiliating, or a mere offensive utterance, and

whether it unreasonably interferes with an employee’s work

performance.” Id. (quoting Shepherd v. Comptroller of Public Accounts, 168 F.3d 871, 874 (5th Cir. 1999)).

Credeur held that criticism of an employee’s work performance, and even

threats of termination, do not satisfy the standard for a harassment claim.

Id. (citing Kumar v. Shinseki , 495 F . App’x 541, 543 (5th Cir. 2012)).

Credeur does not change Flowers . In another recent opinion, Patton v.

Jacobs Engineering Grp., Inc. , 874 F .3d 437 (5th Cir. 2017), the Fifth

Circuit cited, but did not analyze, the elements of Flowers, because the

plaintiff had forfeited his challenge to the district court’s findings that

“the plaintiff did not show that the defendant knew or should have known

of the harassment and failed to take prompt remedial action.” Neither

Credeur nor Patton explained the meaning of “based on” in the third

element.

11.9EMPLOYMENT CLAIMS

193

This charge is for cases in which liability for

harassment based on disability is alleged under a

negligence theory. There is little case law on this cause

of action. These instructions rely heavily on the Fifth

Circuit’s leading case on this subject, Flowers v. South

Regional Physician Services., Inc.

2

B. Charge

Plaintiff [name] claims that [he/she] was harassed

by [harasser’s name] based on [his/her] [specify

disability].

3

Defendant [name] denies Plaintiff [name]’s claims

and contends that [specify contentions].

It is unlawful for an employer to discriminate

against an employee because of the employee’s

disability. Unlawful discrimination can include

harassment.

For Defendant [name] to be liable for harassment

based on a disability, Plaintiff [name] must prove by a

preponderance of the evidence that [harasser’s name]

engaged in harassment based on Plaintiff [name]’s disability and:

1. the conduct was sufficiently severe or pervasive

to:

2Flowers , 247 F .3d at 235–36; see also Gowesky v. Singing River

Hosp. Sys. , 321 F .3d 503, 509–11 (5th Cir. 2003).

3The case law uses “was based on” to state the causation standard

for disability-harassment claims. See, e.g. , Gowesky, 321 F .3d at 509. The

mixed-motive alternative is rarely asserted in such cases. If but-for causation is asserted, or if the cases make clear that the but-for causation standard is correct, the charge may be modified as follows:

... [he/she] would not have been harassed by [harasser] but for

[specify disability].