IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 No. 14-60896

PATRICIA ANDERSON, 

 Plaintiff – Appellant

v.

HARRISON COUNTY, MISSISSIPPI, 

 Defendant – Appellee

__________________________________________________________________________

Consolidated with 15-60204

PATRICIA ANDERSON, 

 Plaintiff – Appellee

v.

HARRISON COUNTY, MISSISSIPPI, 

 Defendant – Appellant

Appeals from the United States District Court

for the Southern District of Mississippi

USDC No. 1:13-CV-302

United States Court of Appeals

Fifth Circuit

FILED

February 12, 2016

Lyle W. Cayce

Clerk

 Case: 14-60896 Document: 00513379409 Page: 1 Date Filed: 02/12/2016
No. 14-60896 cons/w No. 15-60204

2

Before DENNIS and COSTA, Circuit Judges, and ENGELHARDT, District 

Judge.*

PER CURIAM: **

Presently before the Court are two consolidated appeals. In Case Number 

14-60896, Patricia Anderson (“Anderson”), proceeding pro se, appeals the district 

court’s summary judgment dismissal of her claims filed against her employer,

Harrison County, Mississippi (“Harrison County” or “the County”), pursuant to 

the Americans with Disabilities Act (“ADA”) and Title VII of the Civil Rights Act 

of 1964, 42 U.S.C. § 2000e et seq. In Case Number 15-60204, Harrison County 

appeals the district court’s subsequent rejection of its request for an award of 

attorney’s fees. For the following reasons, we AFFIRM the district court’s 

judgments in both matters.

I.

 Anderson, an African-American woman, began working, in 2007, as a

correctional officer for Harrison County at the Harrison County Adult Detention 

Center (“the detention center” or “the center”). For much of her employment at 

the center, Anderson was assigned to the position of canteen officer and was 

supervised by Captain Elaine Lege. While working in that position, Anderson

worked an eight-hour shift on Monday through Friday.

In April 2012, however, Major David Sanderson became the warden of the 

detention center. Upon assuming that position, he initiated a facility-wide 

 

* Chief Judge of the Eastern District of Louisiana sitting by designation.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be 

published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 

47.5.4.

 Case: 14-60896 Document: 00513379409 Page: 2 Date Filed: 02/12/2016
No. 14-60896 cons/w No. 15-60204

3

restructuring of the correctional officer position designed to increase efficiency 

and counteract staffing and budgetary shortfalls, which the center was 

experiencing. Sanderson’s first step was to evaluate the job duties and 

responsibilities of all the correctional officers working at the center. As a result, 

he decided that correctional officers then working eight-hour shifts in the booking 

and offender services departments would be reassigned to the twelve-hour shifts 

worked by the correctional officers with rotating, rather than fixed, duties.1

Sanderson began this transition in June 2012 with the booking 

department. Thereafter, in mid-September 2012,2 the job duties previously 

performed solely by the correctional officers assigned to certain offender services 

positions, i.e., the disciplinary, courtroom, mail, and canteen clerks, became part 

of the overall responsibilities shared by all of the correctional officers working 

twelve-hour shifts. At the same time, all of the employees whose offender services 

positions were eliminated, including Anderson, were reassigned to general 

corrections officer positions with rotating twelve-hour shifts instead of eight-hour 

shifts. 

 Prior to implementing these changes, Sanderson met with each affected 

employee and explained the nature of the transition. More specifically, Sanderson 

met with Anderson in June or July of 2012 to inform her that her assignment as 

a canteen officer would end in September and that, thereafter, that she would 

work twelve-hour shifts as a general correction officer. In late August 2012, 

Anderson took leave under the Family Medical Leave Act. When she 

subsequently returned to work on September 17, 2012, the aforementioned 

 

1 In his deposition, Sanderson explained that corrections officers “rotate shift” every 

ninety days. ROA 15-60204.397.

2 This was the first ninety-day shift change occurring after Sanderson began restructuring the correctional center’s staff in June 2012.

 Case: 14-60896 Document: 00513379409 Page: 3 Date Filed: 02/12/2016
No. 14-60896 cons/w No. 15-60204

4

changes had been made. Three days later, Anderson submitted documentation 

from her psychotherapist stating that she was suffering from severe anxiety and 

depression and, as a result, could only work a 6-8 hour shift. Anderson was told, 

however, that her request could not be accommodated because no position with 

an eight-hour shift was available as a result of the restructuring. 

Dissatisfied with this result, Anderson commenced an action in federal 

district court, on July 22, 2013, against Defendants Harrison County, the 

Harrison County Adult Detention Center, the Mississippi Board of Supervisors

(the Board), Elaine Lege, and David Sanderson. In her complaint, Anderson 

brought a claim under Title VII, alleging that her transfer from an eight to a 

twelve-hour shift constituted discrimination on the basis of her race, and a claim 

under the ADA, alleging that Defendants’ refusal to accommodate her depression 

by allowing her to work a shorter shift constituted disability discrimination.

On October 10, 2014, Sanderson and Lege filed a motion for summary 

judgment in their individual and official capacities seeking to dismiss all claims

against them. Three days later, the County and the Board filed a document titled 

“Joinder,” which provided that the County and the Board “hereby join in Warden 

Sanderson and Captain Lege’s Motion for Summary Judgment” and “adopt[] and 

incorporate[] . . . all of the contents, citations and authorities in said Motion and 

Memorandum in Support.”3 Subsequently, on November 6, 2014, the Board and 

the County filed a document titled “Amended Joinder.”4 This document was 

substantially the same as the initial joinder and reiterated the County and the 

Board’s intent to join in Sanderson and Lege’s motion for summary judgment. 

The amended joinder, however, added a final clause explicitly stated, “Harrison 

 

3 ROA 15-60204.448

4 ROA 15-60204.452

 Case: 14-60896 Document: 00513379409 Page: 4 Date Filed: 02/12/2016
No. 14-60896 cons/w No. 15-60204

5

County, Mississippi and Harrison County Board of Supervisors would move this 

Court for Summary Judgment on their behalf.” 

In opposing the pending motion for summary judgment, Anderson objected

to Harrison County’s amended joinder as untimely, but nonetheless responded to 

the issues raised by the motion relative to her Title VII and ADA claims. In that 

document, she also withdrew her Family Medical Leave Act claim and agreed to 

dismiss her remaining claims against all defendants except Harrison County.5 

The district court granted that request on November 20, 2014.6 Shortly 

thereafter, on December 1, 2014, the district court granted Harrison County’s 

motion for summary judgment relative to the merits of Anderson’s Title VII and

ADA claims, and entered final judgment in its favor. Anderson’s appeal of that 

ruling, in Case Number 14-60896, followed on December 18, 2014. 

In the meantime, on December 15, 2014, Harrison County filed a motion

seeking an award of the attorney’s fees authorized to a prevailing party in a 

lawsuit brought under Title VII, 42 U.S.C. § 2000e-5(k), and under the Americans 

with Disabilities Act, 42 U.S.C. § 12117(a). On February 25, 2015, the district 

court denied that motion. Harrison County’s appeal of that ruling, in Case 

Number 15-60204, followed on March 27, 2015. The two appeals are now 

consolidated for consideration by this Court. 

II.

Anderson first argues that the district court erred in granting the County’s 

motion for summary judgment because it filed the amended joinder after the 

deadline for filing dispositive motions had elapsed. While the district court 

determined that the County’s amended joinder was untimely, it held that the 

 

5 ROA 15-60204.470.

6 ROA 15-60204.492.

 Case: 14-60896 Document: 00513379409 Page: 5 Date Filed: 02/12/2016
No. 14-60896 cons/w No. 15-60204

6

initial joinder the County filed was sufficient to put Anderson on notice of her 

obligation to respond to the County’s motion for summary judgment. We agree. 

Harrison County’s initial joinder gave Anderson ample notice that it was joining 

in Sanderson and Lege’s pending motion for summary judgment and that it was 

adopting their arguments in full. Anderson conceded as much when she 

represented to the district court that she had in fact responded to the County’s 

arguments in her opposing brief. Consequently, Anderson had both sufficient 

notice and a full opportunity to respond to the County’s motion for summary 

judgment and the district did not err in considering it.

Anderson next argues that the district court erred in holding that she failed 

to make out a prima facie case of racial discrimination under Title VII. To 

establish a prima facie claim of discrimination under Title VII a plaintiff must 

demonstrate that: (1) she is a member of a protected class; (2) she was qualified 

for her position; (3) she suffered an adverse employment action; and (4) the 

adverse action was taken “under circumstances which give rise to an inference of 

unlawful discrimination.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 

253 (1980); Rutherford v. Harris Cnty., 197 F.3d 173, 179 (5th Cir. 1999); Jones 

v. W. Geophysical Co. of America, 669 F.2d 280, 284-85 (5th Cir. 1982). “To raise 

an inference of discrimination, the plaintiff may compare [her] treatment to that 

of . . . similarly situated individuals.” Bryant v. Compass Grp. USA Inc., 413 F.3d 

471, 478 (5th Cir. 2005). However, to make such a showing, “a plaintiff must 

show that [s]he was treated less favorably than others under nearly identical 

circumstances.” Willis v. Cleco Corp., 749 F.3d 314, 320 (5th Cir. 2014) (internal 

quotations omitted). Comparators “with different supervisors[] [or] who work for 

different divisions of a company . . . generally will not be deemed similarly 

situated.” Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009).

 Case: 14-60896 Document: 00513379409 Page: 6 Date Filed: 02/12/2016
No. 14-60896 cons/w No. 15-60204

7

Before the district court, Anderson argued that she was subject to 

discrimination because she was required to change from an eight-hour shift to a 

twelve-hour shift, whereas a white corrections officer, Mary Knebel, who worked 

in sanitation, was not. We agree with the district court that Anderson’s claim 

lacks merit given that she has failed to demonstrate that she and Knebel were 

similarly situated. 

Rather, unlike Anderson, Knebel was a supervisor in charge of a kitchen 

crew, a sanitation crew, and inmate workers. Further, according to Sanderson, 

Knebel worked shifts ranging between eight and eleven hours, depending on her 

job responsibilities that day, was “on call” at all times, and had responsibilities 

equal to that of a sergeant.7 Finally, given the nature of Knebel’s supervisory 

responsibilities, which included the authority to retain or dismiss inmates from 

worker status, it was not possible to simply reassign her duties to other 

corrections officer, as Sanderson had done with the offender services positions 

eliminated during restructuring. As a result of these differences, Knebel was not

sufficiently similar to serve as an appropriate comparator for Anderson’s change 

of shift claim and the district court correctly dismissed it on that basis. 

We likewise affirm the district court’s dismissal of Anderson’s ADA claim. 

The ADA defines discrimination to include, among other things:

the failure to make reasonable accommodations to the known 

physical or mental limitations of an otherwise qualified individual 

with a disability . . . unless such covered entity can demonstrate that 

the accommodation would impose an undue hardship.

42 U.S.C. § 12112(b)(5)(A). To make out a failure to accommodate claim under 

the ADA, a plaintiff must demonstrate that: (1) she is a qualified individual with 

a disability; (2) the disability and its consequential limitations were known by 

 

7 ROA 15-60204.237

 Case: 14-60896 Document: 00513379409 Page: 7 Date Filed: 02/12/2016
No. 14-60896 cons/w No. 15-60204

8

the covered employer; and (3) the employer failed to reasonably accommodate 

those known limitations. Feist v. La. Dep’t of Justice, Office of the Attorney Gen., 

730 F.3d 450, 452 (5th Cir. 2013). Although a reasonable accommodation may 

include “part-time or modified work schedules,” E.E.O.C. v. LHC Grp., Inc., 773 

F.3d 688, 697 (5th Cir. 2014) (quoting 42 U.S.C. § 12111(9)(B)), “an 

accommodation that would result in other employees having to work harder or 

longer is not required under the ADA.” Turco v. Hoechst Celanese Corp., 101 F.3d 

1090, 1094 (5th Cir. 1996) (per curiam). 

Sanderson testified that Anderson’s request to work an eight-hour shift 

was unworkable due to the detention center’s staffing and budget shortfalls. 

According to Sanderson, even when all of the corrections officers worked twelvehour shifts, the facility often was short-staffed, requiring some of the higherranking officers to feed the inmates and gather paperwork. As a result, 

Anderson’s scheduling accommodation could not have been accomplished without 

requiring other corrections officers to work longer hours and extended shifts. In 

response, Anderson failed to submit any evidence that either rebutted or 

undermined Sanderson’s testimony that her requested accommodation would 

have caused this manner of hardship. We therefore affirm the district court’s 

dismissal of Anderson’s ADA claim on that basis.8

 

8 Anderson also argues that the district court erred in dismissing her ADA claim because 

the court analyzed the claim under a disparate treatment analysis rather than a reasonable 

accommodation analysis as pleaded in the complaint. We agree that this was error. “A failureto-accommodate claim under the ADA is distinct from a claim of disparate treatment and is 

analyzed separately under the law.” Bridges v. Dep’t of Soc. Servs., 254 F.3d 71, 71 n.1 (5th Cir. 

2001) (unpublished); accord E.E.O.C. v. LHC Grp., 773 F.3d 688, 703 n.6 (5th Cir. 2014). 

Nevertheless, we may affirm the district court on any basis supported by the record, which 

reflects, in this instance, that Anderson failed to rebut the County’s showing that her requested 

accommodation would have imposed an undue burden. Bridges, 254. F.3d at 71. 

 Case: 14-60896 Document: 00513379409 Page: 8 Date Filed: 02/12/2016
No. 14-60896 cons/w No. 15-60204

9

III.

Title VII, 42 U.S.C. § 2000e-5(k), and the Americans with Disabilities Act, 

42 U.S.C. § 12117(a), like 42 U.S.C. § 1988(b), authorize the court, in its 

discretion, to award attorneys’ fees to the prevailing party. The purpose of these 

provisions is to ensure “effective access to the judicial process for persons with 

civil rights grievances.” Dean v. Riser, 240 F.3d 505, 507 (5th Cir. 2001) (quoting 

Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (internal quotations omitted)). 

“Therefore, a prevailing plaintiff is deserving of an award of attorney's fees 

because they are assessed against a ‘violator of federal law.’” See Christiansburg 

Garment Co. v. EEOC, 434 U.S. 412, 418, (1978).

“In the case of prevailing civil rights defendants, however, the 

aforementioned policy considerations, which support the award of fees to a 

prevailing plaintiff, are inescapably absent.” Dean, 240 F.3d at 507. “As such, 

‘[a] successful defendant seeking counsel fees . . . must rely on quite different 

equitable considerations.” Id. (quoting Christiansburg, 434 U.S. at 419). Namely, 

while Congress wanted to “‘make it easier for a plaintiff of limited means to bring 

a meritorious suit,’” it also “wanted to protect defendants from burdensome 

litigation having no legal or factual basis.” Id. at 420 (citation omitted).

Although the language found in those statutes is discretionary, the 

applicable standard differs if a defendant, rather than a plaintiff, prevails. More 

specifically, a prevailing plaintiff ordinarily is awarded attorneys’ fees in all but 

special circumstances. Dean, 240 F. 3d at 508 (citing Christiansburg 434 U.S at 

406). “The supreme court has held that prevailing parties should be awarded 

reasonable fees, absent exceptional circumstances rendering such an award 

unjust.” Hensley, 461 U.S. at 429. Thus, a prevailing plaintiff in a civil rights 

action is presumptively entitled to reasonable attorney's fees, unless a showing 

 Case: 14-60896 Document: 00513379409 Page: 9 Date Filed: 02/12/2016
No. 14-60896 cons/w No. 15-60204

10

of “special circumstances” is made that would deem such an award unjust. See 

Scham v. Dist. Courts Trying Criminal Cases, 148 F.3d 554, 557 (5th Cir.1998).

A more rigorous standard exists, however, for awarding attorney's fees to 

prevailing defendants. Dean, 240 F.3d at 508. That is, a district court may award 

attorney's fees to a prevailing civil rights defendant only “upon a finding that the 

plaintiff's action was frivolous, unreasonable, or without foundation.” Id. (citing

Christiansburg, 434 U.S. at 421; Hensley 461 U.S. at 429 n. 2)). Thus, attorney's 

fees for prevailing defendants are presumptively unavailable unless a showing is 

made that the underlying civil rights suit was “vexatious, frivolous, or otherwise 

without merit.” Id. However, “the term ‘vexatious’ in no way implies that the 

plaintiff’s bad faith is a necessary prerequisite to a few award against him.” 

Christiansburg, 434 U.S. at 421.

“The ‘stringent standard applicable to defendants is intended to ensure 

that plaintiffs with uncertain but arguably meritorious claims are not altogether 

deterred from initiating litigation by the threat of incurring onerous legal fees 

should their claims fail.’” Myers v. City of West Monroe, 211 F.3d 289, 292 n. 1 (5th

Cir. 2000) (quoting Aller v. New York Bd. of Elections, 586 F. Supp. 603, 605 

(S.D.N.Y.1984)). Similarly, a plaintiff’s voluntary dismissal of his complaint does 

not automatically subject him to attorney’s fees: 

 [A] plaintiff whose claim appeared meritorious at 

the onset may encounter various changes in his litigation 

posture during the unpredictable course of litigation. 

“Decisive facts may not emerge until discovery or trial. 

The law may change or clarify in the midst of litigation.” 

Christiansburg, 434 U.S. at 423, 98 S. Ct. 694. Should 

such events create insurmountable problems of proof for 

the plaintiff, voluntarily withdrawing the complaint with 

prejudice would be the prudent thing to do. See Marquart

[v. Lodge 837, 26 F.3d 842, 852 (8th Cir. 1994)].

* * *

 Case: 14-60896 Document: 00513379409 Page: 10 Date Filed: 02/12/2016
No. 14-60896 cons/w No. 15-60204

11

With respect to the more calculating plaintiff, who 

voluntarily withdraws his complaint “to escape a 

disfavorable judicial determination on the merits,” the 

balance tips in favor of the counter policy to discourage 

the litigation of frivolous, unreasonable, or groundless 

claims. Id. Any rule that categorically forecloses the 

possibility of a defendant being found a prevailing party 

in such circumstances could seriously threaten the 

effectuation of this policy.

Dean, 240 F.3d at 510.

The Court reviews de novo the question of whether a party is a prevailing 

party. Davis v. Abbott, 781 F.3d 207, 213 (5th Cir. 2015). On the other hand, a fee 

award, or the denial of fee request, is reviewed for abuse of discretion with factual 

findings subject to review for clear error and conclusions of law reviewed de novo. 

Davis, 781 F.3d at 213 (fee award); Vaughner v. Pulito, 804 F.2d 873, 878 (5th Cir. 

1986) (denial of fee award). 

Applying these principles here, we agree with the district court that the 

issue is a close one, in this instance, and that Harrison County’s arguments in 

favor of a fee award are not without appeal. In the end, however, we decline to 

find that the district court abused its discretion in denying Harrison County’s 

request for attorney’s fees. 

In explaining its decision, the district court acknowledged the three factors 

set forth in Myers v. City of West Monroe that, as argued by Harrison County, 

seemingly favor an award of attorney’s fees. Emphasizing that those factors are 

not the exclusive determinants of the issue, however, the district court also aptly 

noted that Officer Knebel, while having differing job duties from those borne by 

Anderson, did share the same overall classification of correctional officer. Thus, 

Anderson’s discrimination claim, while flawed and ultimately futile, had enough 

 Case: 14-60896 Document: 00513379409 Page: 11 Date Filed: 02/12/2016
No. 14-60896 cons/w No. 15-60204

12

factual support to avoid being characterized as “frivolous, unreasonable, or 

without foundation.” The same is true of Anderson’s ADA claim.

Further, while Anderson’s history of worker’s compensation claims gives 

us some pause, Harrison County points to nothing in the record demonstrating 

that the claims were completely unfounded. Thus, we agree with the district 

court that neither it nor we are in a position to adjudge the merits of those claims. 

Finally, regarding the parties that Anderson dismissed shortly before the district 

court’s summary judgment ruling, the record is not such to demonstrate clear 

error by the district court in concluding those dismissals resulted from 

Anderson’s ongoing good faith examination of her claims during the course of the 

proceeding, rather than simply a belated gesture designed solely to avoid an 

imminent and unfavorable judicial determination on the merits. 

Accordingly, for these reasons, we AFFIRM the judgment of the district 

court. 

 Case: 14-60896 Document: 00513379409 Page: 12 Date Filed: 02/12/2016