### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 16

- 30992

ERYON LUKE,

Plaintiff

- Appellant

v.
CPLACE FOREST PARK SNF, L.L.C., doing business as Nottingham Regional Rehab Center,

Defendant

- Appellee

Appeal from the United States District Court for the Middle District of Louisiana USDC No. 3: 13

- CV

- 402

Before DAVIS, GRAVES, and COSTA, Circuit Judges

. PER CURIAM: * The district court granted summary judgment dismissing Eryon Luke ’s pregnancy discrimination claim. Because Luke has not presented evidence that would allow a jury to discredit the employer’s nondiscriminatory reason for firing her, we AFFIRM.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .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

### FILED January 14, 2019

Lyle W. Cayce Clerk Case: 16-30992 Document: 00514794690 Page: 1 Date Filed: 01/14/2019No. 16

- 30992

2 I. Luke was a Certified Nursing Assistant (CNA) at a skilled nursing reh abilitation center owned by CPlace Forest Park. When she learned that she was pregnant with twins, she told CPlace the good news through a doctor’s note. The note informed CPlace that she could continue working only if she did not engage in heavy lifting for two weeks. Luke was given work that did not involve heavy lifting by the weekend shift supervisor for two days, but when the human resource manager returned, the manager sent her home. About ten days after the first note, Luke presented a second not e from her doctor that cleared her for work with no restrictions. She was back on the job for about a month and a half before she presented a second doctor’s note that said she should not lift more than thirty pounds for the duration of her pregnancy. C Place said that it could n ot abide this, that all the CNAs regularly had to lift more than thirty pounds, and that there was no light duty work available for Luke. As a result, Luke took the pregnancy leave (up to four months) she is entitled to under Lou isiana law. L A

. S TAT

. § 23:342(2)(b)

. About a month into her leave, Luke wrote a letter to CPlace telling them that she would like to return to work and that she “was able to perform all of my duties except lifting patients.” She wrote, “I ask that you w ork with me and allow my supervisors to make reasonable adjustments to the type of work I am able to perform while under doctor’s care.” When four months were up, CPlace told Luke that she was still “unable to return to work” and fired her. She gave birth to her twins one month later. Luke sued CPlace, but the district court entered summary judgment against her. While her appeal was pending, the Supreme Court decided Young v. United Parcel Service, Inc. , 135 S. Ct. 1338 (2015). In light of Young , we vacated and remanded for reconsideration by the district court. Luke v. CPlace Forest Park SNF, L.L.C. , 608 F. App’x 246 (5th Cir. 2015) (per curiam). The Case: 16-30992 Document: 00514794690 Page: 2 Date Filed: 01/14/2019No. 16

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3 district court enter ed summary judgment again, finding that Luke did not make out a prima facie ca se of discrimination

. T his appeal followed.
II. Luke relies on ly on indirect evidence to support her claim. Young authorized use of the McDonnell Douglas burden shifting framework to determine when such circumstantial evidence is enough to defeat summary judgment in a case alleging that denial of an accommodation violated the Pregnancy Discrimination Act

. Young , 135 S. Ct. at 1353

– 54. T he plaintiff bears the initial burden of making out a prima facie case “by showing that she belongs to the protected cla ss, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others ‘similar in their ability or inability to work.’” Id . at 1354 ( citing 42 U.S.C. § 2000e(k)). If she does, the “ employer may then seek to justify its refusal to accommodate the plaintiff by relying on ‘legitimate nondiscriminatory’ reasons for denying her accommodation.” Id

. ( quoting McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 (1973) ). If the employer offers that justification, the onus returns to the employee to show that the reasons given by the employer were not its true reasons but a pretext for
discrimination. Id. ; see also Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 143 (2000). The parties focu s on the first step of this inquiry, as the district court held that Luke could not make out a prima face case. Our review of a summary judgment, however, is not limited to the rationale of the district court a n d we may affirm on any ground supported by the record. See Holtzclaw v. DSC Commc’ ns Corp. , 255 F.3d 254, 258 (5th Cir.2001)

. In addition to defending the district court’s rationale, CPlace argues that we can aff irm on the alternative ground that it offers a nondiscriminatory reason

— Luke’s inabil ity
to perform an essential aspect of her job

— that the evidence does not Case: 16-30992 Document: 00514794690 Page: 3 Date Filed: 01/14/2019No. 16

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4 undermine. Because we agree that Luke does not point to any evidence that casts doubt on CPlace' s justification , we affirm on that ultimate question without deciding whether she established a prima facie case. See, e.g., Diggs v. Burlington Northern & Sante Fe Ry. Co. , 742 F. App’x 1, 4 (5th Cir. 2018); Lay v. Singing River Health Sys. , 694 F . App’x 248, 254 (5th Cir. 2017); Easterling v. Tensas Pari sh Sch. Bd. , 682 F . App’x 318, 322 (5th Cir. 2017) (all assuming arguendo that the plaintiff could establish a prima facie McDonnell Douglas case in affirming grants of summary judgmen t because plaintiff did not offer evidence of pretext) ; see also Brady v . Office of Sergeant at Arms , 520 F.3d 490, 493

– 94 (D.C. Cir. 2008) (Kavanaugh, J.) (recommending that courts focus on the pretext stage if the employer has identified a nondiscriminatory reason for the employment action ). CPlace asserts that it fired Luke because being able to lift more than thirty

- five pounds was essential to the job so certified nurses could lift
residents when needed

. It further contends that it did not offer light duty positions to its nurses. Luke does not point to evide nce that casts doubt on this explanation

. See Willis v. Cleco Corp. , 749 F.3d 314, 318 (5th Cir. 2014). She tries to show that
other workers were given accommodations that involved less lifting . But this involved receiving help from coworkers when lifting, and there is no indication that the employer directed these ad hoc accommodations. Whether the employer engaged in disparate treatment is the question when evaluating whether its nondiscriminatory explanation s hould be discredited because it has not been consistently applied. Cf. Rios v. Rossotti , 252 F.3d 375, 381 (5th Cir. 2001) (citing Price Waterhouse v. Hopkins , 490 U.S. 228, 277 (1989) (O’Connor, J., concurring) (explaining why statements from
nondecision makers do not help a plaintiff unless she can show the employer was acting as a cat’s paw for that coworker)). More fundamentally, none of the Case: 16-30992 Document: 00514794690 Page: 4 Date Filed: 01/14/2019No. 16

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5 workers who allegedly received these accommodations were , like Luke, under a doctor’s orders not to engage in he avy lifting. Notably, when Luke’s doctor cleared her for work after lifting the initial restriction, Luke was allowed to
return. It was only after t he doctor again restricted her that Luke was not
allowed to work

. Because Luke has not pointed to any othe r CNAs who were accommodated when they had a similar medical restriction on heavy lifting, there is not evidence that would allow a jury to conclude that CPlace is insincere when it says that such lifting is an essential part of the job. Contrast Young , 1 35 S. Ct. at 1355 (“[W]hy, when the employer accommodated so many, could it not accommodate pregnant women as well?”). * * * We AFFIRM the judgment of the district court. We also DENY Luke’s motion to file a supplemental brief after oral argument a s both parties were afford ed the full process of briefing and argument. Case: 16-30992 Document: 00514794690 Page: 5 Date Filed: 01/14/2019