Holloway v. ITT Educational Services, Inc., No. 4:2013cv01317 - Document 38 (S.D. Tex. 2014)
Court Description: MEMORANDUM OPINION AND ORDER granting 18 Opposed MOTION for Summary Judgment, denying 28 Motion for Entry of Default Judgment. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION DEREK HOLLOWAY, § § § § § § § § § § Plaintiff, v. ITT EDUCATIONAL SERVICES, INC. , Defendant. CIVIL ACTION NO. H-13-1317 MEMORANDUM OPINION AND ORDER Plaintiff, Derek brings Holloway, this defendant, ITT Educational Services, Inc. action against ("ITT"), for employment discrimination based on disability in violation of the Americans with Disabilities Act, ("ADA"), the Texas as amended, Commission on 42 U.S.C. Human § Rights 12111, Act et seq. ("TCHRA" ) codified in Chapter 21 of the Texas Labor Code, and the Family and Medical Leave Act ("FMLA"), before are the court (Docket Entry No. 29 U.S.C. Defendant's § 2601, Motion for et seq. Pending Summary Judgment 18), and Plaintiff's Application to Clerk for Default and Response to Defendant's Motion for Summary Judgment (Docket Entry No. 28) in which plaintiff moves the court to enter default judgment. For the reasons set forth below, plaintiff's motion for entry of default judgment will be denied, ITT's motion for summary judgment will be granted, dismissed with prejudice. and this action will be I. Plaintiff's Motion for Default Judgment Citing Federal Rule of Civil Procedure 55 and the affidavit of Craig Keener, judgment. 1 plaintiff moves the court for entry of default Plaintiff argues that [t] his lawsuit was originally brought in state court under the TCHRA, and was removed by ITT based upon diversity jurisdiction. Derek Holloway timely filed a First Amended Complaint on September 6, 2013, adding claims under the ADA and the FMLA. ITT never answered that amended complaint, and is in default. Pursuant to Fed. R. Civ. P. 55(a)1 when a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party/s default. Because Derek Holloway/s damages are not for a sum certain, after the clerk has entered a default against ITT, Derek Holloway petitions the Court for a default judgment. Pursuant to Fed. R. Civ. P. 55(b) (2), Derek Holloway requests that the Court conduct a hearing on damages with proper notice to all parties and enter a default judgment against ITT based upon the Court's determination of damages. 2 Federal Rule of Civil Procedure 55 provides in pertinent part: (a) Entering a Default. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend and that failure is shown by affidavit or otherwise, the clerk must enter the party's default. l IPlaintiff's Application to Clerk for Default and Response to Defendant's Motion for Summary Judgment ("Plaintiff's Response"), Docket Entry No. 28, 2. 2Id. at 1-2. -2 - (b) Entering a Default Judgment. C~erk. If the plaintiff's claim is for a sum certain or a sum that can be made certain by computation, the clerk--on the plaintiff's request, with an affidavit showing the amount due--must enter judgment for that amount and costs against a defendant who has been defaulted for not appearing and who is neither a minor nor an incompetent person. (1) By the (2) By the Court. must apply judgment. to In all other cases, the party the court for a default Neither default nor default judgment is appropriate in this action because ITT is not in default and has not failed to otherwise defend the action. This action was originally District Court of Harris County, filed Texas, in the 125th on April 5, Judicial 2013. ITT filed Defendant's Original Answer in the state court on May 6, On May 7,2013, court.4 ITT removed plaintiff's action to this Pursuant to Rule 81 (c) (1), the Federal Rules of Civil Procedure "apply to a civil action after it is removed from a state court. II Moreover, "[a] fter removal, unless the court orders it.1I repleading is unnecessary Fed. R. Civ. P. 81(c) (2) Since ITT answered plaintiff's original petition in state court, ITT did not need to file an amended answer absent a court order. 3Defendant's Original Answer, Exhibit 2 to Notice of Removal, Docket Entry No. 1-4. 4Notice of Removal, Docket Entry No.1. -3- On May 10, 2013, the court issued an Order for Initial Pretrial and Scheduling Conference to be held on July 19, (Docket Entry No.2). 2013 Counsel for ITT participated in the pretrial and scheduling conference held on July 19, 2013 (Docket Entry At the scheduling conference the court entered a Docket No.8) . Control Order, pursuant to which motions to amend pleadings were due by September 6, 2013, plaintiff 2013 filed (Docket Entry No.9) . a On September 6, First Amended Complaint (Docket Entry No. 12), but did not file a motion seeking leave to file an amended complaint. Since plaintiff neither sought nor obtained leave of court to file an amended complaint, ITT was not required to file an amended answer. Even if plaintiff's first amended complaint were properly filed, default judgment would not be appropriate because ITT has not "failed to . . . otherwise defend" the action. 55 (a) . The clerk's file shows that Fed. R. Civ. P. on October 21, 2013, the parties filed an Agreed Motion to Amend the Docket Control Order seeking to extend the deadline for mediation (Docket Entry No. 13), which the court granted on October 22, 2013 (Docket Entry No. 14). On November 12, 2013, ITT filed its Designation of Experts (Docket Entry No. 16), and on January 17, 2014, attorneys for both parties filed a Rule 29 Agreement Regarding Discovery Responses pursuant to which the discovery deadline requests for was defendant's extended -4- responses (Docket Entry to No. plaintiff's 17). On February 24, 2014, ITT filed Judgment (Docket Entry No. 18) the i pending Motion on March 20, 2014, for Summary the parties filed a Joint and Agreed Motion to Postpone Deadline for Filing Joint Pretrial Order Pending Ruling Summary Judgment (Docket Entry No. 27) on Defendant's Motion for i and on March 25, 2014, ITT filed Defendant's Answer to Plaintiff's First Amended Complaint (Docket Entry No. 31). Because plaintiff neither moved for nor received the court's permission to file an amended complaint, ITT's failure to file an answer to the amended complaint prior to March 25, 2014, does not consti tute a default. Moreover, as the court's review of the clerk's file in this case shows that the clerk has not entered default, and ITT has not failed to defend itself in this action, plaintiff's motion for entry of default judgment will be denied. Since the pending motion for summary judgment and the plaintiff's response thereto both treat Plaintiff's First Amended Complaint (Docket Entry No. 12) as the live complaint, and since ITT has now filed an Answer to Plaintiff's First Amended Complaint (Docket Entry No. 31), the court concludes that Plaintiff's First Amended Complaint is the live complaint. II. ITT Defendant's Motion for Summary Judgment argues that it is entitled to summary judgment on plaintiff's ADA and TCRRA claims because plaintiff is unable to show that he was a qualified individual with a disability or that -5- the legitimate l non-discriminatory reason for which he was discharged was a pretext for disability-based discrimination. ITT argues that it is entitled to summary judgment on plaintiffls FMLA claim because plaintiff is unable to cite evidence showing that he was eligible to return to work when his FMLA leave expired. 5 A. Standard of Review Summary judgment is authorized if the movant establishes that there is no genuine dispute about any material factI Fed. R. Ci v. P. 56 (c) . entitles it to judgment. material facts are "genuinel if the and the law Disputes about evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505 2511 (1986). 1 The Supreme Court has interpreted the plain language of Rule 56(c) to mandate the entry of summary judgment "after adequate time for discovery and upon motion l against a party who fails to make a showing sufficient to establish essential to that partyls case s. Ct. "must fact I 2548 1 2552 \ demonstrate I (1986). existence of an element and on which that party will bear l the burden of proof at trial. the II Celotex Corp. v. Catrett l 106 A party moving for summary judgment the absence of a genuine issue of material but need not negate the elements of the nonmovant s case. I Little v. (en banc) Liquid Air Corp. I I 37 F.3d 1069 1 1075 (5th Cir. II 1994) (quoting Celotex l 106 S. Ct. at 2553-2554 (emphasis in 5Defendant / s Motion for Summary Judgment, Docket Entry No. 18 pp. 12 -18. -6- 1 original)). "If the moving party fails to meet this initial burden, the motion must be denied, regardless of the nonmovant's response." Id. If, requires however, the the moving party meets this burden, nonmovant to go beyond the pleadings Rule 56(c) and show by affidavits, depositions, answers to interrogatories, admissions on file, or other admissible evidence that specific facts exist over which there is a genuine issue for trial. S. Ct. at 2553-2554). Id. (citing Celotex, 106 In reviewing the evidence "the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Products, Inc., 120 S. Ct. 2097, 2110 (2000) . Factual controversies are to be resolved in favor of the nonmovant, "but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts." Little, 37 F.3d at 1075. "Moreover, the nonmoving party's burden is not affected by the type of case; summary judgment is appropriate in any case 'where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant. '" Id. (quoting Armstrong v. City of Dallas, 997 F. 2d 62, 67 (5th Cir. 1993)). B. Undisputed Facts ITT hired plaintiff in July of 2009 to work as an Educational Recruiting Representative at the Houston West Campus. 6 Plaintiff 6S ee Affidavit of Derek Holloway, Exhibit B to Plaintiff's Response, Docket Entry No. 28-2. See also Employee Status Notice, (continued ... ) -7- reported to the Director of Recruitment 1 and his job duties included identifying l interviewing l and facilitating enrollment of prospective students in ITT/s programs of study.7 ITT recruiters receive weekly Representative Plan Goals ("Plan") setting forth the number of tours l (1) phone calls ("dials") (4) conducted tours l (2) 1 contacts l (3) scheduled (5) applications l and (6) acceptances they are expected to facilitate each week. 8 Plaintiff received several warnings that his performance fell short of ITTI s expectations. Plaintiff received his first "Written Warningll for "Lack of Performance ll from his then-supervisorl Corey Lewis l on August 171 2010. The August 171 2010 1 Written Warning states that plaintiff/s "application ll rate was unacceptable and that his actual rates of scheduling tours l conducting tours l and acceptances plaintiff fell short of his received a "Final Plan goals. 9 Written Performance ll from his then-supervisor 1 On April Warning for Mark Walker .10 61 2011 1 Lack of The April 6 1 2011 1 Final Written Warning states that plaintiff/s "scheduling" and "conducting ll rates fell below expectation and that his 6( ¢ ¢ ¢ continued) Exhibit A to Defendant/s Motion for Summary Judgment l Docket Entry No. 18-1. 7Job Description l Exhibit B to Defendant/s Motion for Summary Judgment Docket Entry No. 18-2. 1 8Deposition of Derek Holloway ("Plaintiff/s Deposition") Exhibit C to Defendant/s Motion for Summary Judgment l Docket Entry No. 18-3 pp. 89-91. 1 1 9Id. at 94-96 and Exhibit 4 attached thereto. l°Id. at 96-97 and Exhibit 5 attached thereto. -8- "cancellation ll August 4, rate 2011, "Compliance & was plaintiff "mystery shopperll inappropriate the topics average. ll department received a Ethics Violation ll Houston's West Campus. 12 a above "Written Warning ll from Cathy Clark, On for a Director of This warning was based on feedback from who reported that plaintiff while giving her a tour had discussed of the campus. 13 Plaintiff denied the mystery shopper's allegations, but recalled the counseling session with Clark at which he received a Written Warning for directing a "mystery shopperll to review salaries at websites such as salaries.com.l4 The current Director of Recruiting at Houston's West Campus, Steven Lee ("Lee ll ) , counseled plaintiff for "Lack of Performance ll on four occasions: October 10, 2011; November 15, 2011; May 15, 2012; and August 16,2012. 15 told plaintiff that he During each counseling session Lee needed to efforts at meeting his Plan goals. 16 increase his activities and On October 2, 2012, Lee sent an e-mail to his superior, Jeff Deaton, requesting permission to llId. at 97. 12Id. at 97-99 and Exhibit 6 attached thereto. 13Id. at 98. l4Id. at 99. 15Id. at 104-113 and Exhibits 7-10 attached thereto. 16Id. at 105, 107-13. -9- discharge plaintiff for poor performance. 17 to issue a "Final Written Warning" Deaton instructed Lee in lieu of discharge because plaintiff's previous "Final Written Warning" had been issued more than twelve months earlier. 18 On October 5, 2012, Lee plaintiff a "Final Written Warning for Lack of Performance." issued This Final Written Warning stated that plaintiff had started only four students on a Plan of 15 in March of 2012, eight students on a plan of 12 in June of 2012, and two students on a Plan of 13 in September of 2012. 19 While employed by ITT plaintiff received three Performance Planning and Evaluation Summaries ("PP&E") that were prepared by his immediate supervisors on an annual basis: May 24, 2011; and June 5, 2012. 5, The ratings were on a scale of 1 - with 1 being the best score. 20 rating of 4 PP&Es, and 3 - November 17, 2010; Plaintiff received an overall "Failed to Meet Expectations" on the 2010 and 2011 "Met Expectations" - on the 2012 PP&E.21 17E-mail from Steven Lee to Jeff Deaton dated October 2, 2012, Exhibi t B to Defendant's Reply to Plaintiff's Application for Default and Response to Defendant's Motion for Summary Judgment ("Defendant's Reply"), Docket Entry No. 33-2. See also Deposition of Ho Steven Lee, Exhibit A to Defendant's Reply, Docket Entry No. 33-1, pp. 54:22-25,55:1-11,72:16-25. 18Plaintiff's Deposition, Exhibit C to Defendant's Motion for Summary Judgment, Docket Entry No. 18-3, pp. 96-97, 114-16. 19Id. at 114 and Exhibit 11 attached thereto. 2°Exhibit E to Defendant's Motion for Summary Judgment, Docket Entry No. 18-5. 21Exhibit D to Defendant's Motion for Summary Judgment, Docket Entry No. 18-4. -10- After a routine physical in early October of 2012, plaintiff's primary care physician referred him to a urologist. 22 On October 15, 2012, plaintiff was diagnosed with prostate cancer.23 On the same day, plaintiff met with documentation regarding his diagnosis. 24 Lee about his diagnosis, completing an Lee and provided him After his discussion with plaintiff contacted The Hartford about application for disability leave, and plaintiff contacted ITT's Human Resources Department to inquire about medical leave. 25 Plaintiff spoke with Natalie Hay Manager of Benefits, ("Hay"), ITT's then who provided him with FMLA paperwork and submitted his application for approval. 26 ITT approved plaintiff for a 12-week period of FMLA leave lasting from October 15, 2012, through January 7, 2013. 27 Hay also coordinated plaintiff's application for short-term disability ("STD") benefits, which The Hartford approved and plaintiff received from October 22, through March of 2013. 28 After exhausting his STD 2012, benefits, plaintiff applied for and received long-term disability ("LTD") 22Plaintiff's Deposition, Exhibit C to Defendant's Motion for Summary Judgment, Docket Entry No. 18-3, p. 27. 23Id. at 33. 25Id. at 37. 26Id. at 39-40. 27Id. at 41-42 and Exhibit F attached thereto (FMLA approval documents) 28Id. at 44. -11- benefits from The Hartford, which he was still receiving at the time of his deposition on December 18, 2013, because his physician had not yet plaintiff released his daily him to return exhaustion, to work. 29 inability to According to maintain an appropriate level of concentration, and frequent need to use the bathroom have made it impossible for him to perform his job as an Educational Recruiting Representative. 30 ITT receives census data for each of its campuses on a quarterly basis and adjusts staffing in accordance with Resident College Staffing Guidelines prepared by its Operations Department. When quarterly census data requires a reduction of positions within a department, selection of employees for inclusion in a reductionin-force ("RIF") is based on the most recent PP&E scores. Employees who have been placed on Written Warning in the 12-month period immediately preceding the RIF have an additional five points added to their PP&E scores; employees who have been placed on a Final Written Warning within that period have an additional ten points added to their scores. are selected for discharge. value, Employees with the highest scores When two employees have the same point tenure is used as the tie breaker. 31 29Id. The fall 2012 RIF at 45. 30Id. at 49-50. 31Declaration of Donna Smith, Exhibit H to Defendant's Motion for Summary Judgment, Docket Entry No. 18-8, ~~ 3-7. -12- affected 165 employees at 91 ITT campuses. 32 The campus where plaintiff worked was required to include three employees from its Plaintiff - who had recruitment department in the fall 2012 RIF. the highest score of along 13 with two other recruitment department employees with scores of 8 and 6, as well as one other employee from another department were discharged. 33 The RIF reduced the number of recruiters at plaintiff's campus from 17 to 14.34 C. Analysis 1. Disability Discrimination Claims Under ADA and TCHRA ITT argues that it is entitled to summary judgment on plaintiff's ADA and TCHRA claims because plaintiff is unable to show that he was a qualified individual with a disability, or that the legitimate, non-discriminatory reason for which he was discharged, i.e., a nationwide RIF, was a pretext for disabilitybased discrimination. 35 (a) Applicable Law Title I of the ADA prohibits discrimination against qualified individuals on the basis of disability and requires employers to 32Id. ~ 8. 33Id. ~ 10. 34Exhibi t 000721. C to Defendant's Reply, Docket Entry No. 33, ITT 35Defendant's Motion for Summary Judgment, Docket Entry No. 18, pp. 13-18. -13- make reasonable accommodations for otherwise qualified disabled employees. 42 U.S.C. § 12112 (a); § 12112 (b) (5) (A). The ADA makes it unlawful for an employer to discriminate against "a qualified individual on the basis of disability. 42 U.S.C. If § 12112 (a) . The ADA defines "qualified individual" as "an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). Disability is defined as: "(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; impairment; or (C) 42 U.S.C. § (B) a record of such an being regarded as having such an impairment." 12102 (1) (A) - (C). See Milton v. Texas Department of Criminal Justice, 707 F.3d 570, 573 (5th Cir. 2013) under the statute includes the failure to Discrimination make reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual, unless accommodation would impose an undue hardship on the employer. 42 U.S.C. § 12112(b) (5) (A). The ADA, its implementing regulations, and the EEOC's interpretative guidance make clear that an employer's obligation to provide a 'reasonable accommodation,' when triggered, contemplates changes to an employer's procedures, facilities, or performance requirements that will permit a qualified individual with a disability to perform the essential functions of his or her job. Burch v. Coca-Cola Co., 119 F.3d 305, 314 (5th Cir. 1997). Under the ADA a reasonable accommodation may include: (A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and -14- job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities. (B) 42 U.S.C. The § 12111(9). Fifth Circuit follows the burden-shifting evidentiary framework articulated by the Supreme Court in McDonnell-Douglas Corp. v. Green, 93 S. Ct. 1817 (1973), for analyzing employment discrimination claims asserted under the ADA. See Gowesky v. Singing River Hospital Systems, 321 F.3d 503, 511 (5th Cir. 2003). Plaintiff's initial burden is to establish a prima facie case of discrimination based upon his disability by showing disabled, (2) he was qualified for the job, (1) he is (3) he was subjected to an adverse employment action because of his disability, and (4) he was replaced employees. by Id. or treated less favorably than See also Milton, 707 F.3d at 573 non-disabled (quoting Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 396 (5th Cir. 1995)). plaintiff establishes a prima facie case of If a disability-based discrimination, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for its actions. Gowesky, 321 F.3d at 511; Daigle, 70 F.3d at 396. Once the employer articulates a legitimate, nondiscriminatory reason for shifts the adverse back upon the employment action at plaintiff who may issue, prove the burden intentional discrimination by proceeding under one of two alternatives: -15- the pretext alternative Pinkerton v. curiam) or Spellings, the mixed-motives 529 F.3d 513, 519 alternative. (5th Cir. See 2008) (per ("Under a plain reading of the statue, and in accord with the position of other circuits, we conclude that the ADA does not require 'sole causation.' The proper causation standard under the ADA is a ' motivating factor' test. /I) .36 See also Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004) "mixed-motives" analysis used in Title VII (holding that the cases is equally applicable in cases brought under anti-discrimination statutes such as the Age Discrimination in Employment Act which - like the ADA prohibits discrimination Title VII's "motivating broader factor" "because of" prohibition for of age instead of employing discrimination an employment practice). alternative involves "offer [ing] that is a The pretext sufficient evidence to create a genuine [dispute] of material fact that [the] defendant's reason is 36Subsequent to Pinkerton, 529 F.3d at 513, the Supreme Court ruled that the mixed-motives alternative is unavailable in the similarly-worded discrimination provision in the Age Discrimination in Employment Act ("ADEN'). See Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009). Gross held that the mixed-motives argument was unavailable because, among other reasons, the ADEA's relevant provision prohibits discrimination "because of" age instead of employing Title VII's broader prohibition of discrimination that is a "motivating factor" for an employment practice. Id. at [174-76]. See also University of Texas Southwest Medical Center v. Nasser, 133 S. Ct. 2517 (2013) (holding that the mixed-motive argument is not available in the context of a Title VII retaliation claim, which must be proved according to traditional principles of but-for causation). The court need not decide whether the mixed-motive analysis is available under the ADA because, even assuming arguendo that it is, ITT is entitled to summary judgment. -16- not true, but is instead a pretext for discrimination." 376 F.3d plaintiff at Under 312. must offer the mixed-motives sufficient evidence to Rachid, alternative, create a the genuine dispute of material fact "that the defendant's reason, while true, is only one of the reasons for its conduct, and another 'motivating factor' is the plaintiff's protected characteristic." also Maples v. University of Texas Medical Branch at Galveston, 524 F. App'x 93, 95 (5th Cir. 2013) (applying the "motivating factor" standard in analyzing motion for summary judgment filed in an ADA employment discrimination action) If the employee offers evidence capable of proving that discrimination was a motivating factor in the employment decision, the burden shifts to the employer to prove that it would have taken the same action despite the discriminatory animus. Rachid, 376 F.3d at 312. See also Richardson v. Monitronics International, Inc., 434 F.3d 327, 333 (5th Cir. 2005) (analyzing FMLA retaliation claim under modified McDonnell-Douglas scheme endorsed by the Fifth Circuit in Rachid, 376 F.3d at 305). "Although intermediate evidentiary burdens shift back and forth under this framework, trier of fact that '[t] he ultimate burden of persuading the the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'" Reeves, 120 S. Ct. at 2106 (quoting Texas Department of Community Affairs v. Burdine, 101 S. Ct. 1089, 1093 Like the ADA, § (1981». 21.105 of the Texas Labor Code allows an employer to be held liable for discrimination because of or on the -17- -----_._ ..... _._..- ._---- basis of a disability that does not impair an individual's ability to reasonably perform (characterizing "an a Texas job. unlawful employment Labor Code action" 21.051 § and adverse employment action taken by an employer because of an individual's "disability"). 735, 739 See Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d (Tex. 2003) (TCHRA case stating that" [t] he Legislature intended to correlate state law with federal law in employment discrimination cases when it enacted the TCHRA") . "In discrimi- nation cases that have not been fully tried on the merits, courts] apply the burden-shifting United States Supreme Court." analysis [Texas established by the Canchola, 121 S.W.3d at 739 (citing, inter alia, Reeves, 120 S. Ct. at 2097, and McDonnell-Douglas, 93 s. Ct . at 1817). TCHRA, Texas "Given the similarity between the ADA and the courts 'look to analogous guidance when interpreting the Texas Act.'" federal precedent for Rodriguez v. ConAgra Grocery Products Co., 436 F.3d 468,473-74 (5th Cir. 2006) (quoting NME Hospitals, Inc. v. Rennels, 994 S.W.2d 142, 144 (Tex. 1999)). Thus, plaintiff's TCRRA claim is subject to the same analysis as is his ADA claim. (b) Id. Application of the Law to the Undisputed Facts (1) Plaintiff Fails to Establish a Prima Facie Case by Establishing that Be Is a Qualified Individual with a Disability. ITT argues that plaintiff's ADA and TCRRA claims are subject to summary judgment because plaintiff was not a qualified individual when he was discharged on October 23, 2012, because he -18- was unable to perform the essential functions of his job as an Educational Recruiting Representative. The parties do not dispute that when he was discharged plaintiff was being treated for cancer or § that cancer constitutes 1630.2(j) (3) (iii) a disability. See 29 C.F.R. (including cancer in list of impairments that will almost always impose a substantial limitation on a major life act i vi t y). A" 'qual i f ied individual' means an individual who, wi th or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). To avoid summary judgment on the question of whether he was a qualified individual, plaintiff must "I) show: job in "that he could perform the essential functions of the spite of his disability, or 2) that a reasonable accommodation of his disability would have enabled him to perform the essential functions of the job." Corp., 101 F.3d 1090, 1093 Turco v. Hoechst Celanese (5th Cir. 1996) (per curiam) Crossley v. CSC Applied Technologies, L.L.C., 2014 WL 2119156, *2 (5th Cir. May 22, 2014) See also F. App'x - - , (per curiam) . The undisputed evidence establishes that plaintiff's position of Educational Recruiting Representative required him to identify, interview, and facilitate enrollment of prospective students in ITT's programs of study.37 Plaintiff testified that the essential functions of his job required him to make a certain number of phone 37Job Description, Exhibit B to Defendant's Motion for Summary Judgment, Docket Entry No. 18-2. -19- ------_ ..... _.. _... _--_...._ .. _--- calls every day, campus where he schedule prospective worked, give applicants presentations to to visit the prospective applicants, lead prospective applicants on campus tours, and talk with prospective applicants regarding their financial Plaintiff also testified that his daily exhaustion, needs. 38 inability to maintain an appropriate level of concentration, and frequent need to use the bathroom have made it impossible for him to perform the essential functions Representative of his job from October 15, as 2012, an Educational the day he Recruiting notified his supervisor of his diagnosis and need for treatment, until at least the day of his deposition, December 18, 2013. 39 Plaintiff argues that he was nevertheless a qualified individual because he testified throughout his deposition that he could do jobs with a reasonable accommodation. 40 In pertinent part plaintiff testified: Q. Were you able to work from October 12th - excuse me - October 2012 through March of 2013? A. Can you repeat that again? Q. Yeah. I'm just curious. Were you able -- while you were on short-term disability from October 2012 through March of 2013, were you able to work, or was it a situation where you could not work? 38Plaintiff's Deposition, Exhibit C to Defendant's Motion for Summary Judgment, Docket Entry No. 18-3, pp. 47, 89-91. 39Id. at 46-47, 49-50. 4°Plaintiff's Response, Docket Entry No. 28, p. 14 (citing Plaintiff's Deposition, Docket Entry No. 30, pp. 46 and 51). -20- MR. KEENER: Objection. Vague. You can answer. A. If the - if the right position in the right job, I guess I - I probably could have worked. Q. What - what position or job do you think you could have worked during that period? A. Something other than what I was doing. Q. For example, what do performed, what job? A. I don't know. Q. So as you sit here today, you don't know of a job that you could have worked from October 12th - from October 2012 through March of 2013? A. No, I don't know. Q. You don't know of any; is that correct? A. Correct. 41 you think you could have I don't have an answer. Plaintiff also testified: Q. Given your prostate cancer and the fact that you have been on - you're on LT - long-term disability benefits, are there any jobs that you can identify right today, as you sit here, that you can perform? A. Probably anything outside sales flexible, allows me time, basically, make my own schedule. Q. How many hours a week could you work? A. Probably like 20. Q. And again, is it the concentration and the urination and the the same issues that would interfere with you working a full-time job? where it's I guess, to 41Plaintiff's Deposition, Docket Entry No. 30, p. 46:1-24. -21- ------- ~~-------.--- A. Yes, pret ty much. 42 Plaintiff testified further: . Are you seeking reinstatement with your job Q. at ITT? A. No. Q. Is it fair to say you couldn't perform your old job? A. I wouldn't want myoId job. Q. I understand. But could you perform it even if you wanted it? A. Not on a full-time basis, no.43 Plaintiff's argument that he was a qualified individual for purposes of the ADA because he could perform jobs with a reasonable accommodation has no merit because plaintiff has failed to present any evidence that he ever requested a reasonable accommodation. See Burch, 119 F.3d at 314. Telephone Co. I See also Burden v. Southwestern Bell L.P., 183 F. App'x 414, 417 (5th Cir. 2006) (citing Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 735-36 (5th Cir. 1999) (noting process Nor that ll has an employee must participate in an "interactive with the employer to arrive at a suitable accommodation)) . plaintiff presented any evidence of a reasonable accommodation that would have allowed him to perform the essential 42Id. at 51: 6-19. 43Id. at 160:14-22. -22- functions of either his job as an Educational Recruitment Representative or of any other job available at ITT. A wrongful termination claim under the ADA is not properly analyzed under a reasonable accommodation theory unless an employer is shown to have terminated a qualified individual with a disability in order to avoid accommodating that employee's impairments at the workplace. Burch, 119 F.3d at 314. An employee who fails either to request a reasonable accommodation or to identify an accommodation that would have allowed him to fulfill the essential requirements of his own job or of a job that was otherwise available, fails to state a cognizable claim of disability-based discrimination. Plaintiff's testimony that he was unable Id. to perform the essential functions of his position as an Educational Recruiting Representative October 15, from 2012, December 18, 2013, the until day at he was diagnosed least the date conclusively establishes of with his Consequently, plaintiff has failed deposition, that he was not qualified individual on the date of his discharge, 2012. cancer, a October 30, to present evidence capable of establishing a prima facie case of discrimination based on disability, and plaintiff's claim that his discharge constituted disability discrimination in violation of the ADA and the TCHRA fails as a matter of law. F.3d 615, 621 (5th Cir. See Burch v. City of Nacagdoches, 174 1999) ("The ADA does not require an employer to relieve an employee of the essential functions of his or her job, modify those duties, reassign existing employees to -23- ---------.~ ~-~- --- --- perform those jobs, or hire new employees to do SO.II) Gober v. Frankel Family Trust, 537 F. App'x 518, 521-22 2013) See also (5th Cir. (affirming grant of summary judgment for employer in an ADA case where evidence showed that plaintiff could not perform an essential function of his job); Hammond v. Jacobs Field Services, 499 F. App'x 377, 382 (5th Cir. 2012) (2) (same). Plaintiff Fails to Raise a Fact Issue on Either Pretext or Mixed-Motives Alternative. ITT also argues that it is entitled to summary judgment on plaintiff's ADA and TCHRA claims because plaintiff was discharged as part of a nationwide RIF that occurred in the fall of 2012 as a result of a quarterly census that required ITT to reduce staffing at ninety-one campuses, position for economic discriminatory reason Eliminating a including plaintiff's.44 reasons for during a RIF is a discharging an employee. valid, See nonEqual Employment Opportunity Commission v. Texas Instruments Inc., F.3d 1173, 1181 (5th Cir. 1996) Co., 952 F.2d 119, 123 100 (citing Walther v. Lone Star Gas (5th Cir. 1992) ("Lone Star has offered a valid, non-discriminatory explanation for Walther's discharge: he was part of a reduction in force in which employees were laid off based on their performance records. II )). Accordingly, ITT has met its burden to produce evidence of a legitimate, nondiscriminatory reason for plaintiff's discharge. 44Defendant's Motion for Summary Judgment, Docket Entry No. 18, p. 16. -24- In response to ITT's proffered legitimate, nondiscriminatory reason for his discharge, plaintiff argues only that the timing of his discharge - within fifteen days of notifying his supervisor, Lee, of his cancer diagnosis and need for treatment - is capable of Plaintiff argues: raising a fact issue for trial. ITT refused to fire Derek Holloway ten days before he was diagnosed with prostate cancer, and fired him within fifteen days of learning that he had prostate cancer. If Derek Holloway was a bad employee, why wasn't he fired on October 5, 2012, before ITT knew of his cancer 45 diagnosis. Citing Baumeister v. AIG Global Investment Corp., 420 F. App'x 351, 356 (5th Cir. 2011), plaintiff argues that \\ [t]hese facts meet Plaintiff's burden that Defendant's stated reasons are pretext, and that a motivating factor in his termination was his disability."46 ITT argues that plaintiff was selected for inclusion in the RIF based on objective criteria of poor performance - not because of his cancer or need for cancer treatment. In support of this argument ITT has presented undisputed evidence that the RIF was nationwide, that the decision to eliminate three positions in plaintiff's department was made before plaintiff notified Lee of his diagnosis and need for treatment, that the decision regarding which employees to eliminate was based on objective performance criteria diagnosis that were and need made for before plaintiff treatment, and notified Lee that plaintiff 45Plaintiff's Response, Docket Entry No. 28, p. 15. 46rd. -25- of his had the highestl i.e. 1 worst l score of any of the employees at his campus selected for inclusion in the RIF. Plaintiff has failed to point to any evidence that would permit a reasonable juror to find that ITTls proffered reasons for discharging him were not true and were l in factI pretexts for discrimination based on disability. Assuming the mixed-motives argument remains viable for an ADA discrimination claim l plaintiff has failed to point to evidence that would enable a reasonable jury to find that his disability was a motivating factor in ITTls decision to include him in the Fall 2012 RIF. To be a motivating factor discrimination "must actually playa role in the employerls decision making process and have a determinati ve influence on the outcome. 519. Pinkerton l 529 F.3d at II Moreover l under a mixed-motive framework the employer can defend against liability by showing that it would have taken the same action in the absence of any alleged discriminatory animus. Rachid l 376 F.3d at 312; Richardson l 434 F.3d at 333. Here l the undisputed evidence is that ITTls decisions to initiate the RIFI to include four employees from plaintiffls campus I including three from plaintiffls department l had been made by October 51 2012 - ten days before October 151 2012 1 the date plaintiff notified Lee of his cancer diagnosis obj ecti ve performance individual employees and need for criteria that to be treatment. ITT included in used the Moreover to I identify RIF were the the also established before ITT was informed of plaintiffls diagnosis and need for treatment. Plaintiffls score of 13 - which undisputedly -26- placed him at the top of the list for discharge - was based on his 2012 PP&E score of three points received on June 5, 2012, plus an additional ten points for his having received a Final Written Warning on October 5, 2012. Because plaintiff did not notify Lee or his anyone else at ITT of diagnosis and need for cancer treatment until October 15, 2012, neither his cancer nor his need for cancer treatment determinative could influence on have the played outcome a of role ITT's or had decision a to initiate the RIF or to include him in the RIF's implementation. Plaintiff's reliance on Baumeister, 420 F. App'x at 356, is misplaced because in that case the Fifth Circuit held that temporal proximity between employee's pregnancy leave and her discharge alone was not sufficient to establish that the employer's legitimate, non-discriminatory reason for discharge - RIF - was a pretext discrimination. See Administrative Review Board, U.S. 562, 569 for n.21 (5th Cir. 2011) Ameristar Airways, Department of Labor, ("Although carrying Inc. v. 650 F.3d significant weight, temporal proximity standing alone is not enough to sustain the plaintiff's ultimate burden."). Close timing between an employee's protected activity and an adverse action against him may provide the causal connection required to make out a prima facie case. But once the employer offers a legitimate, nondiscriminatory reason that explains both the adverse action and the timing, the plaintiff must offer some evidence from which the jury may infer that discrimination was the real motive. -27- Rachid, 376 F.3d at 312; Richardson, at Plaintiff 333. has offered no such evidence. Moreover, the court concludes that any inference of discrimination arising from the temporal proximity of plaintiff's discharge to his notifying ITT of his cancer diagnosis is overcome by the undisputed evidence that plaintiff would have been discharged from his position as an Educational Recruiting Representative during the RIF that occurred in the fall of 2012 due to his history of poor The court concludes therefore that plaintiff has performance. failed to raise a genuine issue of material fact presenting fact-finder conclude evidence that including him credence, otherwise from which ITT's in the a reasonable legitimate, Fall 2012 for trial by nondiscriminatory RIF is untrue could reason for or unworthy of or that ITT's decision to include him in the RIF was motivated by discrimination based on disability. Accordingly, ITT's motion for summary judgment on plaintiff's ADA and TCHRA claims will be granted. 2. Family and Medical Leave Act Plaintiff alleges that ITT willfully discriminated against him and interfered with his rights under the FMLA by discharging him while he was on FMLA-covered leave. Plaintiff alleges that " [f]iring an employee while on FMLA [leave] interferes with Derek Holloway's right to be reinstated at the end of his FMLA leave, p. 4 47Plaintiff's First Amended Complaint, ~ 23. -28- Docket Entry No. 1147 12, and that U[f]iring an employee because he took an FMLA leave is prohibited by the FMLA. ,,48 ITT argues that it is entitled to summary judgment on plaintiff's FMLA claim because plaintiff cannot show that its legitimate, discharge inclusion interfering with in non-discriminatory a nationwide plaintiff's RIF entitlement reason was to for his pretext for FMLA leave. Alternatively, ITT argues that it is entitled to summary judgment on plaintiff's FMLA claim because plaintiff was not released for work when his FMLA leave period expired, and because when plaintiff was deposed on December 18, 2013, plaintiff was still not able to perform the essential functions of his job. 49 (a) The FMLA Applicable Law allows eligible employees working for covered employers to take temporary leave for medical reasons without risk of losing their employment. See 29 U.S.C. § 2601 (b) (1) and (2) .50 The FMLA contains both prescriptive and proscriptive provisions which, together, seek both to accommodate the legitimate interests of employers and to meet the needs of employees and their families. 48Id. ~ 24. 49Defendant's Motion for Summary Judgment, Docket Entry No. 18, p. 12. 50The FMLA applies to private-sector employers with fifty or more employees. 29 U.S.C. § 2611(4) (A) (i). An employee who has worked for a covered employer for at least 1250 hours during the preceding twelve months is eligible for FMLA leave. 29 U.S.C. § 2611 (2) (A). ITT does not dispute either that it is a covered employer or that plaintiff was eligible for FMLA leave. -29- See Hunt v. Rapides Healthcare System, LLC, 277 F.3d 757, 763 (5th Cir. 2001). Prescriptive provisions of the FMLA allow an eligible employee to take up to twelve weeks of unpaid leave to care for himself if the employee suffers from a serious health condition that makes the employee unable to perform the functions of his position. of a rd. (citing 29 U.S.C. qualified leave 2612 (a) (1)) § period the .51 employee At the conclusion is entitled to reinstatement to his former position, or to an equivalent one, with the same terms and benefits. 29 U.S.C. provisions it of the FMLA make § Proscriptive 2614 (a) . "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under" the FMLA. 29 U.S.C. 2615 (a) . § The FMLA provides a private right of action against employers who violate its provisions. 29 U.S.C. right after to return to work his substantive right under the statute. 29 C.F.R. § 825.214 (a). Authority of Harris County, 51 29 U.S.C. § See § Plaintiff's claimed qualified See 29 U.S.C. Mauder Texas, 2617. v. absence § 2614(a) (1) Metropolitan 446 F.3d 574, 580 a i Transit (5th Cir. 2612 (a) (1) provides in relevant part that [A]n eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period for one or more of the following: (D) Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee. -30- is 2006). See also McArdle v. Dell Products, L.P., 293 F. App'x 331, 334 (5th Cir. 2008) ("An employer's failure to restore an employee to the same or equivalent position gives rise to an entitlement claim under 29 U.S.C. 2615(a) (1) .ff) § Nero v. Industrial Molding i Corp., 167 F.3d 921,926-27 (5th Cir. 1999) (distinguishing claims alleg-ing a failure to reinstate from claims alleging retaliatory discharge following FMLA leave) 731 F.3d 342, 348-51 (5th i Cuellar v. Keppel Amfels, L.L.C., Cir. 2013) (Elrod, J., concurring) (discussing substantive differences between FMLA claims based on allegations of interference with entitlement to FMLA leave and retaliation for having exercised FMLA rights) . Here, plaintiff states that his FMLA claim is not a retaliation claim but, instead, a claim for interference with his entitlement to FMLA leave. 52 To establish a prima facie interference case, [plaintiff] must show that (1) []he was an eligible employee, (2) [ITT] was an employer subject to the FMLA's requirements, (3) []he was entitled to leave, (4) []he gave proper notice of [his] intention to take FMLA leave, and (5) [ITT] denied [him] benefits to which []he was entitled under the FMLA. Lanier v. Uni versi ty of Texas Southwestern Medical F. App'x 312, 316 (5th Cir. 2013) 667 F.3d 757, 761 (6th Cir. element: Center, (citing Donald v. Sybra, 2012)). 527 Inc., At issue is only the fifth whether ITT denied plaintiff benefits to which he was entitled under the FMLA. 52See plaintiff's Response, Docket En t -31- ------_ _ _._----.... .. ry No. 28 , p. 9 . The right to FMLA leave is not unlimited. An employee is not entitled to "any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not U.S.C. § 2614 (a) (3) (B). taken the leave. /I 29 An employer who denies reinstatement bears the burden of showing "that an employee would not otherwise have been employed at the time reinstatement is requested./I § 825.216(a). 29 C.F.R. If an employer states a legitimate reason for not reinstating an employee following a period of FMLA leave, the employee must present evidence sufficient to raise a jury question that the employer's pretextual. stated reason for not reinstating him was Shirley v. Precision Castparts Corp., 682-83 (5th Cir. 2013) 726 F.3d 675, ("[D]enying an employee the reinstatement to which he is entitled generally violates the FMLA, [but] denying reinstatement to an employee whose right to restored employment had already been extinguished - for legitimate reasons unrelated to his efforts to secure FMLA leave - does not violate the Act./I). (b) Application of the Law to the Facts Citing Nero, 167 F.3d at 927, plaintiff argues that ITT violated rights guaranteed by the FMLA when it discharged him while he was on FMLA leave and failed to reinstate him at the end of his 12-week leave period. Plaintiff argues Derek Holloway was approved for FMLA leave, and he was on FMLA leave when he was terminated. (Holloway affidavit) . He was entitled to twelve weeks of job protection, he -32- didn' t get one week. (Holloway affidavit). He was entitled to continued benefits for twelve weeks. (Holloway affidavit). His benefits were cancelled after one week when he was being treated for cancer. (Holloway affidavit). ITT's only defense is that they now claim that Derek Holloway lost his job due to a reduction in force. (Lee 78/23). However, a reasonable jury could not believe ITT. ITT refused to fire Derek Holloway three weeks earlier, before it knew of his cancer diagnosis and need for an FMLA leave. (Lee 75/10) Steven Lee, the person who supplied the information that led to Derek Holloway's termination, knew all about Derek Holloway's cancer diagnosis and need to take an FMLA leave when Seven Lee put together information to get him terminated. (Lee 78/23). Fourteen other recruiters did not lose their jobs. A jury could conclude that the reason Derek Holloway lost his job and his benefits was because he got sick and need[ed] to take an FMLA leave. This creates a fact issue which precludes summary judgment in this matter. 53 The undisputed evidence establishes that plaintiff's discharge in the nationwide RIF that ITT implemented in the fall of 2012 was based solely on obj ecti ve criteria, i . e., his most recent PP&E score and points associated with the Final Written Warning that Lee gave him on October 5, 2012. This evidence establishes that plaintiff's most recent PP&E score of three points was established on June 5, 2012, a date that was over four months before he applied for FMLA leave on October 15, 2012. The undisputed evidence establishes that the Final Written Warning that added ten points to plaintiff's score was prepared and given to plaintiff on October 5, 2012, ten days before he applied for FMLA leave. The evidence also establishes that plaintiff's combined score of 13 was higher than 53Id. -33- any other Educational Recruiting Representative at his campus, and that two other recruiters with better scores were also included in Moreover, the RIF. plaintiff does not dispute that ITT's RIF scoring system was objective, that his score of 13 qualified him for discharge in the RIF, or that his score of 13 was established before he sought FMLA The leave. undisputed evidence also establishes that plaintiff's FMLA leave expired in January of 2013, and that at that time plaintiff's physicians had not released him to return to work, and he was not capable of performing essential functions of his job as an Educational Recruitment Representative. Nevertheless, quoting Nero, 167 F.3d at 927, plaintiff argues that "[t]he only question in such cases is 'whether the plaintiff has established by a preponderance of the evidence, entitled to the benefit he claims.,"s4 that he is But for reasons explained in Shirley, 726 F.3d at 682-83, plaintiff's reliance on Nero is misplaced. In Shirley the Fifth Circuit explained [t]hat an employee is not guaranteed an absolute right to reinstatement following a qualified absence is not only "a matter of common sense [,] but also a principle reflected in this circuit's pattern jury instructions, and in the opinions of a significant majority of other circuit courts. II Id. at 682-83 Instructions Third, 54 & nn.31-34 (Civil) Fourth, § Sixth, (citing 11.10.2 (B) (8) Seventh, Fifth Circuit (2009), Eighth, I d . at 8 - 9 . -34- ._----_._------------ and Pattern Jury and cases from the Eleventh Circuits (citations omitted)). The Fifth Circuit explained that its opinion in Nero, 167 F.3d at 921, is not to the contrary: There, having accepted that [29 U.S.C.] § 2614(a) (3) provides an employee only those rights to which he would have been entitled had he not taken leave, we noted that, because reinstatement was an FMLA entitlement, "the employee [was] due the benefit if the statutory requirements [were] satisfied, regardless of the intent of the employer. A few district courts have interpreted the italicized phrase as imposing a strict liability standard, requiring employers, in all circumstances, to reinstate employees after returning from FMLA leave. these courts misread Nero. Shirley, 726 F.3d at 682 (citations omitted) . /I The Fifth Circuit explained that [i]t is true that an employer may not fail to reinstate an employee following his return from FMLA leave, but only i f the statutory requirements have been satisfied. Among those requirements is one dictating that an employee must actually be entitled to the position to which he seeks reinstatement, 29 U.S.C. § 2614 (a) (3) i and an employer may challenge that entitlement by offering evidence that the employee would have lost his position even had he not taken FMLA leave t 29 C.F.R. § 825.216(a). Thus, although denying an employee the reinstatement to which he is entitled generally violates the FMLA, denying reinstatement to an employee whose right to restored employment had already been extinguished - for legitimate reasons unrelated to his efforts to secure FMLA leave does not violate the Act. Although we might have been clearer in Nero, we in fact considered the employerts reasons for terminating the employee, which, of course t would have been unnecessary had those reasons been irrelevant. To avoid summary judgment in a case such as this where the defendant employer states a legitimate cause for not reinstating an employee following a period of FMLA leave, i.e. t discharge during a nationwide RIF and inability to perform essential functions of -35- ~~~~ ._------------- ---- his job, plaintiff must present evidence sufficient to raise a genuine issue of material fact for trial that ITT's stated reasons for failing to reinstate him are pretextual. to do so. Plaintiff has offered no This plaintiff fails evidence of pretext. Plaintiff's allegations and evidence are insufficient to survive summary judgment on his FMLA claim, as no reasonable jury could find that he was denied reinstatement for any reason other than ITT's stated reasons, i.e., shortly after he began is FMLA leave, plaintiff was discharged as part of a nationwide RIF, and when his FMLA leave expired his physicians had not released him to return to work, and according to his own testimony he was not capable of performing essential functions Recruitment Representative. of his job as an Educational Accordingly, the court concludes that ITT is entitled to summary judgment on plaintiff's FMLA claim. III. Conclusions and Order For the reasons explained above in entry of default § I, Plaintiff's motion for judgment asserted in Docket Entry No. 28 is DENIED. For the reasons explained above in § II, Defendant's Motion for Summary Judgment (Docket Entry No. 18) is GRANTED. SIGNED at Houston, Texas, on this 28th day of August, 2014. UNITED STATES DISTRICT JUDGE -36-
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