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

No. 16

- 30879

TIMOTHY PATTON , Plaintiff

–

Appellant,

v. JACOBS ENGINEERING GROUP, INCORPORATED; TALASCEND, L.L.C. , Defendant s

– Appellee s

.

Appeal from the United States District Court for the Middle District of Louisiana

ON PETITION FOR REHEARING Before KING , JOLLY , and PRADO, Circuit Judges. EDWARD C. PRADO, Circuit Judge: Treating Plaintiff

–

Appellant Timothy Patton ’s petition for rehearing en banc as a petition for panel rehearing, the petition for panel rehearing is DENIED. The petition for rehearing en banc is also DENIED. The prior opinion, Patton v. Jacobs Eng’g Grp., Inc. , 863 F.3d 419 (5th Cir. 2017) , is withdrawn, and the following opin ion is substituted:
Patton brought this American Disabilities Act (“ADA”) case against Jacobs Engineering Group Inc. (“Jacobs”) and Talascend, LLC (“Talascend”). The district court granted summary judgment against Patton on his failure to accommodate and hostile work environment claims. For the reasons stated United States Court of Appeals Fifth Circuit 

### FILED October 24, 2017

Lyle W. Cayce Clerk Case: 16-30879 Document: 00514209175 Page: 1 Date Filed: 10/24/2017No. 16

- 30879

2 below, we AFFIRM

. I. BACKGROUND
Patton designs electrical and instrumentation systems. He also has an obvious stutter. Talascend is a staffing agency which furnishes contract employees, including engi neers and designers, to its clients. Jacobs, an engineering firm, is one of Talascend’s clients. Patton has been an employee of Talascend since October 2012, when he was assigned to work at Jacobs’ facility in Baton Rouge, Louisiana. Around the time he was hired , Patton told Emily Wimbley, a Talascend recruiter, about his stuttering and anxiety problems, which he said “all go[] together.” Patton alleges that his coworkers at Jacobs harassed him on account of his stutter. For example, coworkers would call him names such as lawnmower and bush hog (a type of lawnmower)

. Additionally , coworkers who passed him in the hallway or met him on the elevator would mock his stuttering, and

c oworkers who sat near him would mock him and ma ke loud noises right behind him

. Even his supervisor , Greg Guillory, allegedly mocked him at a department

- wide meeting in front of fifty coworkers. Patton testified that he complained about this harassment to Guillory and Wimbley; in addition, he testifi ed that he called and left a message with Talascend’s human resources department , but that this call was never returned

. Patton also made a number of complaints about noise while he worked at Jacobs. According to Patton, the work environment at Jacobs was full of “loud laughter, banging, [and] horseplay.” He complained to Guillory three times about the noise in his work space and asked Guillory “to move [him] to an area that was quiet so that [his] nerves would not affect [his] stuttering.”
Patton also discussed the noise problem with Wimbley at Talascend . Talascend offered to reassign Patton to another client and also raised the issue with Case: 16-30879 Document: 00514209175 Page: 2 Date Filed: 10/24/2017No. 16

- 30879

3 Guillory

. But Patton continued working at Jacobs and by all accounts performed his job well. According to Pa tton, t he harassment and excessive noise at Jacobs caused him to experience severe anxiety

. He emailed Bruce Kistrup, a lead engineer, four times about taking off work due to his stress

. As a result of this stress, Patton suffered a panic attack while driv ing and got into a car accident on February 28, 2014. Patton did not return to work at Jacobs after this accident. On May 7, 2014, Patton filed a charge of discrimination with the Louisiana Commission on Human Rights (“LCHR”) and the U.S. Equal Employment Opportunity Commission (“EEOC”). 1 He asserted that he was harassed on account of his disability. Specifically, Patton alleged the following facts: I was subjected to psychological violence. People made habitual efforts to talk repetitively in an unnatural, intensified loud voice while near me. I was subjected to name calling such as “bush hog”, “how pathetic” and “don’t fit in.” Several people would mock my stuttering while looking directly at me. On one occasion Greg Guillory while speaking in a meeting began to stutter while looking directly at me. I have been excluded from work related lunches/dinners, left out of the communication loop and meeting announcements. I complained on several occasions to management from both Jacobs and Talascend but nothing was done. On February 28, 2014 I was involved in an accident and became stressed to the point that I am currently out on a medical leave. Patton also filed an intake questionnaire on May 7, 2014. In the intake questionnaire, Patton clarified that his disability consisted of stuttering, anxiety, and noise sensitivity. He also stated that he requested changes or assistance because of his disability but t hat his employer did not make any

1 Although Patton filed the charge of discrimination with both the LCHR and the EEOC, it appears that only the EEOC investigated the charge. Case: 16-30879 Document: 00514209175 Page: 3 Date Filed: 10/24/2017No. 16

- 30879

4 actual changes in response to his requests

. Patton later amended his charge of discrimination on September 30, 2014, to add a claim of sex discrimination. During the EEOC investigation, Talascend and Jacobs submitted posit ion statements in which they disputed Patton’s allegations of discrimination. These position statements focused on the harassment allegations, though Jacobs also responded to the allegation that it failed to accommodate Patton’s disability. The EEOC issued a notice of right to s ue letter on November 24, 2014. Patton filed suit in Louisiana state court on February 6, 2015. He brought four claims against Jacobs and Talascend : (1) intentional infliction of emotional distress; (2) negligent infliction of emotio nal distress; (3) hostile work environment in violation of the ADA; and (4) failure to accommodate in violation of the ADA. Shortly after the defendants removed the case to federal court, Patton’s negligent infliction of emotional distress claim was dismis sed. Jacobs and Talascend moved for summary judgment in May 2016. The district court granted summary judgment in favor of both defendants on all claims . First, the district court held that Patton failed to administratively exhaust his failure to accommodate claim. In the alternative, the district court held that Patton failed to put forth sufficient evidence showing that the defendants were aware of his disability. Second, the district
court held that Patton failed to introduce sufficient evidence of a hostile work environment. The district court also found that Patton failed to take advantage of the complaint procedures in either defendant’s anti

- harassment policy. Finally, the district court held that Patton failed to put forth sufficient evidenc e in support of his intentional infliction of emotion al distress claim. This appeal followed. Case: 16-30879 Document: 00514209175 Page: 4 Date Filed: 10/24/2017No. 16

- 30879

5 II. DISCUSSION On appeal, Patton argues that the district court erred in granting summary judgment against him on his failure to accommodate and hostile work environment claims. Patton does not brief his intentional infliction of emotional distress claim; accordingly, we confine our review to his ADA claims. A. Standard of Review “This Court ‘ reviews de novo the district court ’ s grant of summary judgment, applying the same standard as the district court.’” Feist v. La., Dep’ t of Justice, Office of the Att’y Gen. , 730 F.3d 450, 452 (5th Cir. 2013) (quoting Fabela v. Socorro Indep. Sch. Dist. , 32 9 F.3d 409, 414 (5th Cir. 2003)). Summary judgment is appropriate “if th e 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. Civ. P. 56(a). A genuine dispute of material fact exists if the “evidence is such that a reasonable jury could retur n a verdict for the nonmoving party.” Royal v. CCC & R Tres Arboles, L.L.C. , 736 F.3d 396, 400 (5th Cir. 2013) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986)). The Court “ must view all facts and evidence in the light most favorable
to t he non

- moving party.” Feist , 730 F.3d at 452 (quoting Juino v. Livingston Par. Fire Dist. No. 5 , 717 F.3d 431, 433 (5th Cir. 2013) ).
B. Analysis
1. Failure to Accommodate The ADA forbids covered employers from “ discriminat [ing] against a qualified individual on the basis of disability ” regarding the “ terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). D iscrimination includes failure to “mak[e] reasonable accommodations to the known physical or mental limitati ons of an otherwise qualified individual with a disability . . . , unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of [its] business .” Id. § 12112(b)(5)(A). To Case: 16-30879 Document: 00514209175 Page: 5 Date Filed: 10/24/2017No. 16

- 30879

6 establish a failure to accommodate claim , the plaintiff must show that: “(1) the plaintiff is a ‘qualified individual with a disability’; (2) the disability and its consequential limitations were ‘known’ by the covered employer; and (3) the employer failed to make ‘reasonable accommodations ’ for such known limitations.” Feist , 730 F.3d at 452 (quoting 42 U.S.C. § 12112(b)(5)(A)). Patton asserts that he is disabled on account of childhood onset fluency
d isorder. He contends that “the noisy office environment heightened his anxiety, caused [hi m] to suffer panic attacks and worsened his stuttering over time.” But according to Patton, Jacobs and Talascend “did noth ing” to address the noise issue . Eventually, Patton’s anxiety caused him to miss work and get into a car accident. Neither Jacobs nor Talascend contest s that Patton is a qualified individual with a disability ; thus, we assume without deciding that Patton has proved the first element of his failure to accommodate claim

. But Jacobs and Talascend dispute the other two elements

— whether they knew of his disability and whether they failed to accommodate it. In addition, Jacobs and Talascend

argue that Patton failed to administratively exhaust his failu re to accommodate claim, and Talascend argues that Patton’s charge was not timely. We address the exhaustion argument first.

a . Administrative exhaustion Before a plaintiff may file her ADA claim in federal court, she must exhaust her administrative remedies. See Dao v. Auchan Hypermarket , 96 F.3d 787, 789 (5th Cir. 1996) (per curiam) (noting that the ADA incorporates by reference Title VII’s administrative procedures). Specifically, the plaintiff must file a charge of discrimination with the EEOC within 180 days of “the alleged unlawful employment practice,” or within 300 days if the c harge is filed with a state or local agency

— here, the LCHR

. 42 U.S.C. § 2000e

- 5(e)(1). Case: 16-30879 Document: 00514209175 Page: 6 Date Filed: 10/24/2017No. 16

- 30879

7 In determining whether a plaintiff has exhausted a particular claim, we have noted that “ the scope of an EEOC complaint should be construed liberally.” Pacheco v. Mineta , 448 F.3d 783, 788 (5th Cir. 2006)

. “ On the other hand, a primary purpose of Title VII is to trigger the investigatory and conciliatory procedures of the EEOC, in attempt to achieve non

- judicial resolution of employment discrimination claims. ” Id. at 788

– 89. To balance these considerations, “ this court interprets what is properl y embraced in review of a Title

- VII claim somewhat broadly, not solely by the scope of the administrative charge itself, but by the scope of the EEOC investigation which

‘ can reason ably be expected to grow out of the c harge of discrimination.’” Id. at
7 89 (quoting Sanchez v. Standard Brands, Inc. , 431 F.2d 455, 46 6 (5th Cir. 1970) ). “ We engage in fact

- intensive analysis of the statement given by the plaintiff in the administrative ch arge, and look slightly beyond its four corners, to its substance rather than its label. ” Id. The district court held that Patton failed to exhaust his failure to accommodate claim by not including it in the charge. As the district court found, t he formal charge does not suggest that either Talascend or Jacobs failed to accommodate Patton’s disability

. But Patton did state in the intake questionnaire that he requested changes or assistance because of his disability, and that Jacobs and Talascend “brushed [h im] off” and made “no actual changes.” Patton argues that the intake questionnaire should be considered a charge under Fede ral Express Corp. v. Holowecki , 552 U.S. 389 (2008) . There, the Court recognized that an intake questionnaire may constitute a charge under the Age Discrimination in Employment Act. The Court specified that “ a filing is to be deemed a charge ” if it both satisfies the regulatory requirements of a charge and may be “ reasonably construed as a request for the agency to take remedial action to protect the employee ’ s rights or otherwise settle a Case: 16-30879 Document: 00514209175 Page: 7 Date Filed: 10/24/2017No. 16

- 30879

8 dispute between the employer and the employee

. ” Id. at 402. Patton’s intake questionnaire, however, is not verified as required by EEOC regulations. 29 C.F.R. § 1601.7. Thus, the questionnaire alone ca nnot be deemed a charge. Nevertheless, if the intake questionnaire is considered part of the formal charge Patton did file , the scope of the EEOC investigation growing out of the charge could reasonably b e expected to include a failure to accommodate claim. We find that Patton’s intake questionnaire should be construed as part of the EEOC charge. Patton filed his intake questionnaire together with his formal charge of discrimination on May 7, 2014. The charge form directs complainants to “a ttach extra sheet(s)” “[i]f additional paper is needed.” Moreover , the EEOC investigation clearly encompassed Patton’s failure to accommodate claim. In its position statement, Jacobs stated that “Patton never made any request for reasonable accommodation f rom Jacobs. ” The position statement also responds
to a question

— presumably posed by the EEOC

— about Patton’s request for a reasonable accommodation. Thus, Patton did in fact “trigger the investigatory and conciliatory procedures of the EEOC” regarding his f ailure to accommodate claim. Pacheco , 448 F.3d at 788

– 89

. Construing the scope of Patton’s charge liberally, we hold that his failure to accommodate claim could

r easonably be expected to

— and in fact did

— grow out of his charge of discrimination. b

. K nowledge of disability In addition to finding Patton’s failure to accommodate claim unexhausted, the district court granted summary judgment on the alternative ground that Patton failed to put forth sufficient evidence showing that either Jacobs or Talasce nd knew of his disability. “Under the ADA, an actionable disability means, in relevant part, a physical or mental impairment that substantially limits one or more of the major life activities of an individual. ” Taylor v. Principal Fin. Grp. , 93 F.3d 155, 1 6 3 (5th Cir. 1996) (footnote Case: 16-30879 Document: 00514209175 Page: 8 Date Filed: 10/24/2017No. 16

- 30879

9 omitted) (citing 42 U.S.C. § 12102). “ This court has recognized that ‘ where the disability, resulting limitations, and necessary reasonable accommodations, are not open, obvious, and apparent to the employer, the initial burden rests primarily upon the employee

. . . to specifically identify the disability and resulting limi tations, and to suggest the reasonable accommodations.’” EEOC v. Chevron Phillips Chem. Co., LP , 570 F.3d 606, 621 (5th Cir. 2009) ( omission in original) (quoting Taylor , 93 F.3d at 165 ). Although the employee need not utter any magic words, she “ must expl ain that the adjustment in working conditions or duties she is seeking is for a medical condition

- related reason .” Id. We agree with the district court that there is insufficient e vidence to prove either Jacobs’ or Talascend’s knowledge of Patton’s disabil ity. Of course, Patton’ s stutter was obvious. And it is clear that Patton complained about noise on several occasions. But Patton must show that the defendants attributed Patton’s limitation

— sensitivity to noise

— to a physical or mental impairment ; in other words, they must have known that Patton sought a quieter work environment because of a medical condition. The only evidence supporting Talascend’s knowledge of Patton’s disability and resulting limitation is Patton’s testimony that he told Emily Wimbley that his stuttering and anxiety problems “all go[] together.” He also told her “that at a previous job [he] was sensitive to [noise].” These statements are too vague to show that Patton identified his sensitivity to noise as a limitation resulting from a disability. 2 Whether sufficient evidence supports Jacobs’ knowledge of Patton’s disa bility and resulting limitation is a closer question. Patton testified that he

2 Because we dispose of Patton’s failure to accommodate claim against Talascend on the merits, we need not address T alascend’s alternative argument that Patton’s EEOC charge was untimely. Case: 16-30879 Document: 00514209175 Page: 9 Date Filed: 10/24/2017No. 16

- 30879

10 asked Jacobs “to move [him] to a quiet area so that [his] stuttering

— [his] nerves would decre ase, [his] nervous system problems would stop causing [his] increase in stuttering.” It is reasonable to infer that based on this request, Jacobs was on notice that noise aggravated Patton’s anxiety, which in turn aggravated his stuttering. But this is not enough; a jury must be able to infer Jacobs ’ knowledge of the “limitations experienced by the employee as a result of [his] disability.” Taylor , 93 F.3d at 164 (emphasis added). In the case of a mental disability such as childhood onset fluency disorder, specificity in attributing a work limitation to a disability is particularly important. See id.
at 164

– 65. Patton did not tell Jacobs that his disability caused his noise sensitiv ity , nor was this causal relationship obvious . Accordingly, a s the district court held, Patton “has not created a genuine dispute of fact that he adequately linked office noise to an aggravation of his disability, which in turn gave rise to a workplace lim itation for which [Jacobs] should have been aware.” The district court did not err in granting summary judgment against Patton on his failure to accommodate claim.
2. Hostile Work Environment To establish a hostile work environment claim under the ADA, a plaintiff must show: (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, co ndition, 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 v. S. Reg’l Physician Servs. Inc. , 247 F.3d 229, 235

– 36 (5th Cir. 2001) (quoting McConathy v. Dr. Pepper/Seven Up Corp. , 131 F.3d 558, 563 (5th Cir. 1998) )

. “ Harassment affects a ‘ term, condition, or privilege of employment ’ if it is ‘ sufficiently severe or pervasive to alt er the conditions of the victim’ s Case: 16-30879 Document: 00514209175 Page: 10 Date Filed: 10/24/2017No. 16

- 30879

11 employment and create an abusive worki ng environment.’” 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) ). In determining whether the work environment is hostile, this Court examines the totality of circumstanc es, 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 Ramsey , 286 F.3d at 268). But “ simple teasi ng, offhand comments, and isolated incidents (unless extremely serious) ” do not suffice to alter the terms and conditions of employment. Faragher v. City of Boca Raton , 524 U.S. 775, 788 (1998) (citation and internal quot ation marks omitted). The district court held that Patton failed to satisfy the fourth and fifth elements of a hostile work environment claim. On appeal, Patton emphasizes that the “vicious cycle of mental and physical abuse” he experienced while at
Jacobs created a “hostile and abusive” work environment

. 3 Jacobs dispute s whether this abuse actually occurred, noting that none of Patton’s coworkers corroborated his account and that Patton did not complain of any harassment while he worked at Jacobs. Jacobs a lso argue s that Patton has only pointed to

a few instances of teasing and offhand comments, none of which affect ed Patton’s work performance and which do not meet the Fifth Circuit’s high bar for a hostile work environment.
V iewing the record in the light most favorable to Patton, a jury could find that the harassment Patton experienced at Jacobs was sufficiently severe or pervasive to alter the terms and conditions of his employment. There is

3 Patton also seems to contend that general office noise at Jacobs contributed to the hostile work environment. As the district court noted, however, a noisy office environment does no t support Patton’s ADA claim because the noise was not directed at Patton. Thus , the noisy office environment was not “based on” Patton’s disability. Flowers , 247 F.3d at 235 (quoting McCarthy , 131 F.3d at 563). Case: 16-30879 Document: 00514209175 Page: 11 Date Filed: 10/24/2017No. 16

- 30879

12 evidence that the alleged harassm ent was pervasive; f or example, P atton testified that “there were a lot of names by quite a few people over an extended period of time, ” and that he was called names like bush hog and lawnmower every week

. Patton was not as clear about how often his cowork ers mocked his stuttering , but his testimony suggests that he was repeatedly mocked by various individuals

— in the hallway, on the elevator, and around his desk. This conduct rises above simple teasing and offhand comments. Cf. EEOC v. WC&M
Enter s

. , Inc. , 4 96 F.3d 393, 400

– 01 (5th Cir. 2007) (holding that “a long

- term pattern of ridicule” based on the plaintiff’s national origin and religion, including name

- calling and mocking, sufficed to establish a hostile work environment claim under Title VII). Patton also testified about a particularly severe incident in which his supervisor, Greg Guillory, mocked him at a department

- wide meeting. Furthermore, it is reasonable to infer that this harassment contributed to the anxiety that forced Patton to miss wo rk, thus interfering with his work performance. Based on these facts , Patton has put forth sufficient evidence in support of the fourth element of a hostile work environment claim. Nevertheless, b ecause Patton did not challenge on appeal the district court’s determination that he “unreasonably failed to avail himself of the procedures set forth in the anti

- harassment policies maintained by both defendants,” see Hockman v. Westward Commc’ns, LLC , 407 F.3d 317, 330 (5th Cir. 2004) , he has forfeited his o bjection to this determination. Therefore , we affirm the district court’s determination that Patton failed to show that the defendants knew or should have known of the harassment and failed to take prompt, remedial action. The district court did not err in granting summary judgment against Patton on his hostile work environment claim. Case: 16-30879 Document: 00514209175 Page: 12 Date Filed: 10/24/2017No. 16

- 30879

13 II I. CONCLUSION For the foregoing reasons, the district court ’s grant of summary judgment against Patton is AFFIRMED

. Case: 16-30879 Document: 00514209175 Page: 13 Date Filed: 10/24/2017