Opinion
SA-22-CV-1194-OLG (HJB)
05-01-2024
JEREMIAH P. SLAVIT, Plaintiff, v. PERIPHERAL VASCULAR ASSOCIATES, P.A., Defendant.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
HENRY J. BEMPORAD, UNITED STATES MAGISTRATE JUDGE
To the Honorable United States District Judge Orlando L. Garcia:
This Report and Recommendation concerns the Motion for Summary Judgment filed by Defendant Peripheral Vascular Associates, P.A. (“PVA”) (Docket Entry 41). Pretrial matters in this case have been referred to the undersigned for consideration. (Docket Entry 17.) For the reasons set out below, I recommend that PVA's Motion for Summary Judgment (Docket Entry 41) be GRANTED.
I. Jurisdiction.
Plaintiff Jeremiah Slavit, proceeding pro se, brought this action against PVA for alleged violations of the Americans with Disabilities Act (“ADA”). (See Docket Entry 46 at 1.) The Court has original jurisdiction over these claims pursuant to 28 U.S.C. § 1331. The undersigned has authority to issue this recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).
II. Background.
PVA is a medical group specializing in vascular surgery in San Antonio, Texas. (Docket Entry 41, at 1-2; Docket Entry 46 at 3.) Slavit was employed by PVA as a vascular technologist from August 3, 2020, until his termination on November 17, 2022. (Docket Entry 41, at 2; Docket Entry 46 at 6.) As PVA points out, Slavit's employment began in the midst of the COVID-19 pandemic.(Docket Entry 41 at 2.)
See https://www.cdc.gov/museum/timeline/covid19.html#Late-2020eum (identifying August 28, 2020, as the date when “[t]he first documented case of COVID-19 reinfection in the U.S. is confirmed by the Nevada State Public Health Laboratory”). The Court judicially notices this information. See In re Abbot, 954 F.3d 772, 779 (5th Cir. 2019) (taking judicial notice of CDC facts related to COVID-19).
By July 2, 2020-one month before Slavit was hired-PVA implemented a “COVID-19 Exposure Policy,” which required all employees to “wear a mask and eye protection at all times.” (See Docket Entry 41-1, at 83.) PVA's Employee Handbook-which Slavit also received during his onboarding-warns that “[i]f an employee . . . violates Company policy, ....the employee will be subject to disciplinary action, up to and including termination.” (Id. at 74.) In addition to the masking requirement in PVA's Covid-19 policy, PVA's handbook also explicitly states that an employee's job responsibilities include “[o]beying the safety rules” and “[u]sing prescribed personal protective equipment [(“PPE”)],” again warning that failure to do so “may result in disciplinary action, up to and including termination of . . . employment.” (Id. at 75.)
On September 9, 2020, Slavit was reprimanded for failing to properly wear his prescribed PPE: i.e., his mask. (Docket Entry 41-1, at 101, 104.) Specifically, PVA admonished Slavit for removing his mask when not in anyone else's immediate proximity and for interacting with patients without the mask covering his nose. (Id. at 104.) PVA told Slavit he must wear his mask at all times except when alone in a room with the door closed. (Id.)
On December 2, 2020, Slavit emailed PVA, stating: “wearing a mask over my mouth and nose goes against my religion.” (Docket Entry 41-1, at 112.) He also speculated that wearing a mask “causes negative health affects including hypoxia.” (Id.) PVA told Slavit to continue complying with its Covid-19 policy but to consult a physician if he had “any personal health concerns.” (Id.) Slavit then inquired whether PVA's policy “provide[s] options for individuals with religious and medical exemptions.” (Id. at 109.) PVA told Slavit it would consider accommodations on an individualized basis, and that he must provide a written explanation of his religious objections before an accommodation on such grounds would be considered. (Id. at 108.) PVA further advised that Slavit must consult a physician before medical accommodations would be considered. (Id.)
In an email the following day, Slavit again asserted medical and religious objections to wearing a mask. (Docket Entry 41-1, at 106.) Slavit's medical objection was his own, selfdiagnosed hypoxia. (Id.) He dismissed PVA's instruction to consult a physician for an official medical diagnosis. (Id.) Slavit's religious objections were that he must behold his god “with unveiled face,” (id. (quoting 2 Corinthians 3:18)) and must “not stifle the Holy Spirit,” (id. (quoting 1 Thessalonians 5:19)). Slavit was not exempted from the masking policy on either of these grounds, and two weeks later he was reprimanded again for a violating the policy. (See Docket Entry 41-1, at 115.)
Slavit continued to complain about the masking policy over the next several months. (See Docket Entry 41-1, at 117-30.) On March 29, 2021, PVA again discussed the policy with Slavit, explaining that if he had a documented diagnosis from a qualified medical professional, then an accommodation for medical reasons could be provided. (Id. at 122.) PVA also informed Slavit that it could accommodate him with a temporary scribe position-involving no physical contact with patients or other staff members-until the mask policy changed. (Id.) Slavit declined, stating that he would comply with the mask policy despite his disagreements with it. (Id.)
PVA modified the Covid-19 this policy on June 2, 2021, permitting vaccinated employees “to remove their mask when not providing patient care.” (Docket Entry 41-1, at 88.) Two days later, in response to Slavit's continuing objections to the mask policy, PVA presented Slavit with three options. (Id. at 130.) First, he could take a temporary leave of absence, using available paid time off followed by leave without pay, until the mask policy was further relaxed. (Id.) Second, he could temporarily change positions and become a scribe, working remotely until the mask policy changed. (Id.) The scribe position paid less than his position as a vascular technologist but involved no physical contact with patients or other employees and, thus, would not require any masking. (Id.) Lastly, Slavit could comply with the mask policy and continue in his position as a vascular technologist. (Id.) Slavit chose the second option and became a remote scribe while the mandatory mask policy remained in effect. (Id.)
Slavit was aware that he would be paid less than he was paid in his position as a vascular technologist, and thereby limited his work-availability to mornings so he could pursue other business in the afternoons. (Docket Entry 41-1, at 132.) Due to his limited availability in the scribe position, PVA informed Slavit that he would be reclassified as a part-time employee and no longer receive benefits. (Id. at 135.) Despite initially acknowledging the pay-rate decrease (see id. at 132), Slavit later complained, “it appears I have not been being paid my agreed upon rate per my contract.” (Id. at 145.) PVA told Slavit that he was being paid a scribe's wages for a scribe's work, but assured him that upon returning to his position as a vascular technologist-once the masking policy changed-he would be “paid at the rate appropriate to that position.” (Id. at 144.)
PVA updated its Covid-19 policy on May 2, 2022, to “encourage but not require” employees to wear face masks while providing direct patient care. (Id. at 90.) However, employees were still required to mask when asked by a patient to do so. (Id.) (Docket Entry 411, at 90.) Three days later, Slavit filed a charge of disability discrimination and retaliation with the Equal Employment Opportunity Commission (“EEOC”). (Id. at 39-43.) On or about May 9, 2022, Slavit returned to his original position as a full-time vascular technologist, with his benefits reinstated and a 3% increase to his original pay-rate. (Docket Entry 41-4, at 2.) On July 29, 2022, the EEOC notified Slavit of his right to sue. (See id. at 44.) He eventually filed suit on October 31, 2022, alleging discrimination and retaliation under the ADA. (See Docket Entry 1, at 1.)
On November 15, 2022, PVA terminated Slavit's employment for refusing to wear a mask after a patient asked him to do so before he performed a carotid scan. (Docket Entry 41-5, at 2.) According to PVA's termination report, there were no other vascular technologists in the office at the time and the patient had to reschedule her procedure. (Id.) According to the report, PVA terminated Slavit's employment because he “forced a rescheduling” of the patient's appointment and put her “at further risk.” (Id.) Slavit avers that he would have complied with the patient's request, but neither he nor any other staff member on duty at the time had a mask on hand. (Docket Entry 48, at 12.)
Slavit subsequently amended his complaint to incorporate his termination into his claims. (See Docket Entry 6, at 5.) Slavit amended his complaint a second time, at the Court's direction, to address equitable tolling. (See Docket Entry 46, at 2.) PVA now moves for summary judgment. (Docket Entry 41.) Slavit has filed a response (Docket Entry 48) and PVA has replied (Docket Entry 49).
III. Applicable 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. CIV. P. 56(a). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Allen v. U.S. Postal Serv., 63 F.4th 292, 300 (5th Cir. 2023) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A disputed fact is material if it “might affect the outcome of the suit under the governing law.” Id. (quoting Anderson, 447 U.S. at 248). When considering a motion for summary judgment, a court “must view all facts and evidence in the light most favorable to the non-moving party.” Feist v. La., Dep't of Just., Off. of the Atty. Gen., 730 F.3d 450, 452 (5th Cir. 2013)
The party moving for summary judgment bears the initial burden of “informing the court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party carries its burden, “the nonmovant must then direct the court's attention to evidence in the record sufficient to establish that there is a genuine issue of material fact for trial.” Mary Kay, Inc. v. Weber, 601 F.Supp.2d 839, 851 (N.D. Tex. 2009) (citing Celotex Corp., 477 U.S. at 323-24). “The parties may satisfy their respective burdens by tendering depositions, affidavits, and other competent evidence.” Arthur v. Liberty Mut. Pers. Ins. Co., No. SA-21-CV-00602-FB, 2022 WL 17824520, at *1 (W.D. Tex. Dec. 20, 2022) (citing Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992)), report and recommendation adopted, No. SA-21-CA-602-FB, 2023 WL 2557392 (W.D. Tex. Feb. 3, 2023).
In ruling on motions for summary judgment, the Court is required to consider only the party's cited materials. FED. R. CIV. P. 56(c)(3); see Am. Fam. Life Assur. Co. of Columbus v. Biles, 714 F.3d 887, 896 (5th Cir. 2013) (“Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence ....”) (citation omitted). Even when evidence supporting a party's position is in the summary judgment record, if the party fails to cite or refer to it, “that evidence is not properly before the district court.” Jones v. Houston Indep. Sch. Dist. Bd. of Trustees, 986 F.Supp.2d 812, 819 (S.D. Tex. 2013), aff'd, 575 Fed.Appx. 282 (5th Cir. 2014).
IV. Analysis.
Slavit claims that PVA “discriminated and retaliated” against him “based upon a perceived disability.” (Docket Entry 46, at 3.) He argues that, “through its ‘Covid-19 policy,'” PVA regarded him as disabled because it “assumed that ‘unvaccinated' employees who did not have a medical or religious exemption, such as [P]laintiff, were impaired by a contagious disease.” (Id. at 18.) Slavit further argues that PVA “made a record of disability by classifying . . . [him] as an ‘unvaccinated' employee, and classifying him as needing to wear a mask, isolate, and get vaccinated.” (Id. at 19.) Liberally construed, Slavit also alleges that his reassignment to a remote scribe position and termination were retaliation for opposing PVA's “discriminatory ‘Covid-19 policy.'” (Id. at 25.)
PVA moves for summary judgment on several grounds, including that Slavit is not “disabled” for purposes of the ADA. (Docket Entry 41, at 6-10.) PVA argues that, as a matter of law, a company's Covid-19 policy is not sufficient to prove that it regards its employees as disabled under the ADA. (Id. at 7.) Nor, PVA argues, is documentation of Slavit's vaccination status evidence of a record of disability. (Id. at 9.) PVA argues that Slavit's retaliation claim also fails because its Covid-19 policy, and the consequences of non-compliance, existed prior to any of Slavit's alleged protected activity. (Id. at 10-12.) For the reasons set out below, the undersigned agrees that PVA is entitled to summary judgment both as to Slavit's discrimination and his retaliation claims.
A. Discrimination.
The ADA prohibits employers from “discriminat[ing] against a qualified individual on the basis of disability.” 42 U.S.C. § 12112(a). A disability for purposes of the ADA may be “(A) a physical or mental impairment that substantially limits one or more major life activities; . . . (B) a record of such impairment; or (C) being regarded as having such an impairment.... whether or not the impairment limits or is perceived to limit a major life activity.” 42 U.S.C. §§ 12102(1)(A)-(C); (3)(A). Slavit alleges discrimination under the “regarded as” and “record of” prongs of the ADA. (Docket Entry 46, at 1.) Each allegation is addressed in turn below.
1. Discrimination under the “regarded as” prong.
Slavit's discrimination claim under the “regarded as” prong of the ADA cannot survive summary judgment unless there is a genuine dispute that he was “subjected to an action prohibited by [the ADA] because of an actual or perceived physical or mental impairment[,] whether or not the impairment limits or is perceived to limit a major life activity.” Chancey v. BASF, No. 2340032, 2023 WL 6598065, at *2 (5th Cir. Oct. 10, 2023) (quoting Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 230 (5th Cir. 2015); 42 U.S.C. § 12102(3)(A)). The only evidence Slavit identifies to support his contention that PVA regarded him as disabled is PVA's “‘Covid-19 policy' itself.” (See Docket Entry 46, at 33.)
Numerous cases from around the circuit and the country have rejected claims like the one Slavit makes here.The Court should adopt the reasoning of these cases, and hold that there is no genuine dispute that PVA did not regard Slavit as disabled simply because of its Covid-19 policy. PVA is accordingly entitled to summary judgment on Slavit's “regarded as” claim of disability discrimination.
See, e.g., Liner v. Terminix Pest Control, Inc., No. CV 22-3698, 2023 WL 8005008, at *4 (E.D. La. Nov. 17, 2023) (dismissing claim that employer regarded unvaccinated employee as disabled under its Covid-19 policy because employer “required all of its employees to abide by the new vaccination policy”); Chancey, 2023 WL 6598065, at *2 (dismissing claim that employer regarded unvaccinated employee as disabled under Covid-19 policy because “merely being at risk of developing a condition is insufficient to state a disability-discrimination claim under the ADA”); Deramo v. Am. Airlines Grp., Inc., No. 4:22-CV-575-O-BP, 2022 WL 17905317, at *2 (N.D. Tex. Dec. 1, 2022), report and recommendation adopted, No. 4:22-CV-575-O-BP, 2022 WL 17903802 (N.D. Tex. Dec. 23, 2022) (dismissing pro se plaintiff's complaint and rejecting claim that he was “disabled” under the ADA because defendant “treated him like he had Covid-19 by requiring him to wear a mask”); Gallo v. Wash. Nat'ls Baseball Club, LLC, 2023 WL 2455678 (D.D.C. Mar. 10, 2023) (“The ‘regarded as having' prong of the ADA's definition of disability ‘does not cover [a] case where an employer perceives a person to be presently healthy with only a potential to become ill and disabled in the future.'”); Sharikov v. Philips Med. Sys. MR, Inc., No. 122-326, 2023 WL 2390360, at *8 (N.D. N.Y. Mar. 7, 2023) (“[A]llegation that Defendant perceived Plaintiff as potentially infectious fails to plausibly allege a claim that the . . . Defendant regarded Plaintiff as having an impairment.”); Jorgenson v. Conduent Transp. Sols., Inc., No. 22-CV-1648, 2023 WL 1472022, at *4 (D. Md. Feb. 2, 2023) (dismissing unvaccinated employee's “regarded as” ADA claim because requiring employees to attest to their vaccination status “does not plausibly reflect a determination or belief that any of its employees are disabled or impaired”) aff'd, No. 23-1198, 2023 WL 4105705 (4th Cir. June 21, 2023); Speaks v. Health Sys. Mgmt., Inc., No. 5:22-CV-77-KDB-DCK, 2022 WL 3448649, at *5 (W.D. N.C. Aug. 17, 2022) (“The Company only regarded Speaks as being required-like all of its employees-to obtain a COVID-19 vaccine or be approved for an exemption and then ‘regarded' her as having failed to do so by the deadline to become vaccinated: . . . a personal choice . . . [that] cannot be considered an impairment under the ADA.”); Earl v. Good Samaritan Hosp. of Suffern, No. 20-CV-3119, 2021 WL 4462413, at *6 (S.D.N.Y. Sept. 28, 2021) (rejecting notion that employer regarded unvaccinated employee as disabled “based on his potential to infect patients with COVID-19” because the “perception of infectiousness is not the same as perceived disability.”)
2. Discrimination under the “record of” prong.
Similarly, Slavit cannot proceed under the theory that he is disabled based on having a “record of” a disability. To survive summary judgment on this theory, Slavit must demonstrate a genuine dispute as to whether he has “a history of an impairment that substantially limit[s] one or more major life activities when compared to most people in the general population, or was misclassified as having had such an impairment.” 29 C.F.R. § 1630.2(k)(2) (2012); see 42 U.S.C. § 12102(A)-(B). “Major life activities” are “those activities that are of central importance to daily life.” Hale v. King, 642 F.3d 492, 500 (5th Cir. 2011) (citation omitted). These include “caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” Id. (quoting 29 C.F.R. § 1630.2(i) (2012)).
Slavit points to PVA's record of his vaccination status as evidence that PVA misclassified him as having a record of a disability. (See Docket Entry 41-1, at 157.) But a vaccination status is not a disability. Whether one is vaccinated poses no substantial limitation to any major life activity. See 29 C.F.R. § 1630.2(i) (2012). Necessarily then, a record of one's vaccination status is not a record of a disability under the ADA. See also Jorgenson, 2023 WL 1472022, at *4, (“Merely requiring Plaintiff to follow a COVID-19 safety policy applicable to all employees does not support the inference that . . . [employer] classified Plaintiff as disabled under ADA.”) Thus, PVA is also entitled to summary judgment on Slavit's “record of” claim of disability discrimination.
B. Retaliation.
Even though Slavit has failed to demonstrate a disability as a matter of law, this does not resolve his claim of retaliation, because “the ADA does not require proof of disability to mount a retaliation claim.” Jorgenson, 2023 WL 1472022, at *5. To establish a prima facie case of retaliation under the ADA, Slavit must show that (1) he engaged in an activity protected by the ADA; (2) he suffered an adverse employment action; and (3) a causal connection exists between the protected activity and the adverse action. See Lyons v. Katy Indep. Sch. Dist., 964 F.3d 298, 304 (5th Cir. 2020). If Slavit can establish a prima facie case of retaliation, PVA must provide a legitimate, nonretaliatory reason for the adverse employment actions. Id. Once PVA does so, then Slavit must demonstrate that those proffered reasons are a mere pretext for retaliation. Id. Ultimately, to survive summary judgment on his retaliation claim, Slavit “must show that ‘but for' the protected activity, the adverse employment action would not have occurred.” Id.; see Feist, 730 F.3d at 454 (“In order to avoid summary judgment, the plaintiff must show ‘a conflict in substantial evidence' on the question of whether the employer would not have taken the action ‘but for' the protected activity.”) (citation omitted).
Here, Slavit cannot raise a genuine dispute as to the third element of his prima facie case- that there is a causal connection between his protected activity and the adverse actions PVA took against him. In considering this issue, it is important to note that PVA's Covid-19 policy was already in place when Slavit was hired, as was its Employee Handbook-which warns employees of the possible ramifications, including termination, for failure to comply with company policies. (See Docket Entry 41-1, at 74-75, 83.) As these pre-existing policies were the basis for Slavit's reassignment and ultimate termination-even though he engaged in protected activity by objecting to PVA's Covid-19 policy as discriminatory, filing an EEOC charge, and filing this lawsuit-no reasonable jury could find that these activities were causally connected to the adverse actions PVA took. See, e.g., Shklyar v. Carboline Co., 616 F.Supp.3d 920, 927 (E.D. Mo. 2022) (“Given that the adverse action taken against Shklyar was taken pursuant to policies that were implemented before Shklyar engaged in her alleged protected activity, it is not reasonable to infer that there was a causal connection between the two events.”), aff'd, No. 22-2618, 2023 WL 1487782 (8th Cir. Feb. 3, 2023), cert. denied, 144 S.Ct. 288 (2023); Jorgenson, 2023 WL 1472022, at *6, (“Plaintiff cannot establish a retaliation claim because . . . policy was put in place before he expressed opposition or refused to comply with it.... [and] consequences for non-compliance with the policy were established before any alleged protected activity occurred.”); Lundstrom v. Contra Costa Health Servs., No. 22-cv-06227-CRB, 2022 WL 17330842, at *6-7 (N.D. Cal. Nov. 29, 2022) (dismissing retaliation claim because “COVID-19 policies were in place before Lundstrom opposed the testing, mask-wearing, and vaccination requirements”); Speaks v. Health Sys. Mgmt., Inc., No. 5:22-CV-00077-KDB-DCK, 2022 WL 3448649, at *6 (W.D. N.C. Aug. 17, 2022) (“[I]t is clear that the policy-which was undisputedly the grounds for Speaks' termination when she chose to remain unvaccinated-was enacted before Speaks spoke up in opposition to the vaccination requirement. Therefore, it is not reasonable to infer that there was a causal connection between her criticism of the policy and her termination.”).
Even if Slavit could somehow establish the third element of his prima facie case, the record presents no basis to genuinely dispute that PVA's proffered reason-Slavit's failure to comply with its Covid-19 policy-was, in fact, the reason for the adverse employment actions it took against him. Slavit was warned during his onboarding that “[i]f an employee . . . violates Company policy, .... the employee will be subject to disciplinary action, up to and including termination.” (See Docket Entry 41-1, at 74.) In addition to the masking requirement specific to the Covid-19 policy, Slavit was also warned more generally during his on boarding that failure to use prescribed PPE “may result in disciplinary action, up to and including termination of . . . employment.” (Id. at 75.) Given this clear record, any one of his masking violations were legitimate grounds for termination or, in PVA's discretion, imposition of some lesser form of disciplinary action. There is no evidence in the record to suggest that PVA temporarily reassigned Slavit to a remote scribe position for any reason other than his failures to comply with the masking policy. (See Docket Entry 41-1, at 99, 115, 130.) Nor is there any evidence in the record that PVA ultimately terminated Slavit's employment for any reason other than his violating the policy and compelling a patient to reschedule her appointment. (See Docket Entry 41-5, at 2.) Indeed, in his second amended complaint, Slavit agrees that his “non-compliance” with PVA's Covid-19 policy “was the reason for the adverse employment actions, including termination,” and that “[t]here was no other reason to terminate . . . [his] employment.” (Docket Entry 46, at 25, 33.)
Based on the summary judgment record before the Court, no reasonable jury could find that Slavit was fired because of his objections to PVA's Covid-19 policy, his subsequent EEOC charge, or this lawsuit. His retaliation claim therefore fails at both the prima facie and the but-for causation stages of the inquiry.
V. Conclusion and Recommendation.
For the foregoing reasons, I recommend that PVA's Motion for Summary Judgment (Docket Entry 41) be GRANTED.
VI. Notice of Right to Object.
The United States District Clerk shall serve a copy of this Report and Recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the Clerk of Court, or (2) by mailing a copy to those not registered by certified mail, return receipt requested. Written objections to this Report and Recommendation must be filed within fourteen (14) days after being served with a copy of the same, unless this time period is modified by the District Court. 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b).
The parties shall file any objections with the Clerk of the Court and serve the objections on all other parties. Absent leave of Court, objections are limited to twenty (20) pages in length. An objecting party must specifically identify those findings, conclusions, or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusory, or general objections. Battle v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this Report and Recommendation shall bar the party from a de novo review by the District Court. Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to file timely written objections to the proposed findings, conclusions, and recommendations contained in this Report and Recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to, proposed findings and conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass 'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).