Caplan v. Fluor Enterprises, Inc., No. 4:2017cv02083 - Document 43 (S.D. Tex. 2019)

Court Description: MEMORANDUM OPINION AND ORDER granting in part and denying in part 38 MOTION to Strike 34 Response to Motion, Objections to Plaintiff's Summary Judgment Evidence and Motion to Strike, denying 31 MOTION for Summary Judgment , denying 28 MOTION for Partial Summary Judgment Regarding Two Affirmative Defenses. (Name of Mediator or Request for Referral to Magistrate for Settlement Conference due by 5/8/2019.) (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

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Caplan v. Fluor Enterprises, Inc. Doc. 43 United States District Court Southern District of Texas ENTERED IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION DANIEL CAPLAN, April 08, 2019 David J. Bradley, Clerk § § § § § § § § § Plaintiff, v. FLUOR ENTERPRISES, INC., Defendant. CIVIL ACTION NO. H-17-2083 MEMORANDUM OPINION AND ORDER Plaintiff, Daniel Caplan ("Caplan"), against defendant, Fluor Enterprises, Inc. brings this action ("FEI"), for disability discrimination, failure to accommodate, and retaliatory discharge in violation of the Americans with Disabilities Act, as amended, 42 U.S.C. § 12111, et seq. ("ADA"); and for interference and/or retaliatory termination in violation of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. court are Plaintiff's ("Caplan's MPSJ") Enterprises, (Docket Entry No. Motion (Docket Inc.'s Motion 31), § 2601, et seq. for Entry for Pending before the Partial No. Summary 2 8) Summary 1 Judgment Defendant Judgment ( "FEI' s and Defendant Fluor Enterprises, Fluor MSJ") Inc.'s Objections to Plaintiff's Summary Judgment Evidence and Motion to Strike ( "FEI' s No. 3 8) . Objections and Motion to Strike") (Docket Entry For the reasons set forth below, Caplan's MPSJ will be denied, FEI's MSJ will be denied, and Fluor's Objections and Motion to Strike will be granted in part and denied in part. Dockets.Justia.com I. Standard of Review Summary judgment is authorized if the movant establishes that there is no genuine dispute about any material fact, entitles it to judgment. material facts are Fed. "genuine" R. if Ci v. the P. 56 . 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). The Supreme Court has interpreted the plain language of Rule 56 to mandate the entry of summary judgment "after adequate time for discovery and upon motion, showing sufficient to against a party who fails to make a establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." S. Ct. "must 2548, 2552 (1986). Celotex Corp. v. Catrett, 106 A party moving for summary judgment 'demonstrate the absence of a genuine issue of material fact,' but need not negate the elements of the nonmovant's case." Little v. Liquid Air Corn..:_, 37 F.3d 1069, (en bane) (quoting Celotex, 106 S. Ct. 1075 (5th Cir. at 2553-2554) 1994) "If the moving party fails to meet this initial burden, the motion must be denied, regardless of the nonmovant's response." the moving party meets this burden, the pleadings Id. If, however, the nonmovant must go beyond and show by affidavits, depositions, answers to interrogatories, or other admissible evidence that facts exist over which there is a genuine issue for trial. Id. "[T]he court must draw all reasonable inferences in favor of the nonmoving party, and -2- 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. "[T]he 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. II. Undisputed Facts 1 FEI hired Caplan as a Specialist III, Material Management, on October 31, 2011, to work in the Quality Department where he reported to Bob Yur (Office Manager) and Kenneth J. Taylor (Quality Manager) . 2 In 2015 Caplan's job title was reclassified as Associate Quality Specialist III within the reorganized Quality 1 See Factual Background, Plaintiff's Original Complaint, Docket Entry No. 1, pp. 2-6 ~~ 7-62; Statement of Facts, FEI's MSJ, Docket Entry No. 31, pp. 10-17; Relevant Facts, Plaintiff's Response to Defendant's Motion for Summary Judgment, ("Plaintiff's Response"), Docket Entry No. 34, pp. 3-5; and Statement of Facts in Defendant Fluor Enterprises, Inc.'s Opposition to Plaintiff's Motion for Partial Summary Judgment ("FEI's Opposition to Caplan's MPSJ"), Docket Entry No. 35, at pp. 9-14. Page numbers for docket entries in the record refer to the pagination inserted at the top of the page by the court's electronic filing system, CM/ECF. 2 0ral Deposition of Daniel Caplan ("Caplan Deposition"), pp. 53:4-54:16, 106:10-107:1, Exhibit A to FEI's MSJ, Docket Entry No. 31-1, pp. 15 and 28. -3- Department, 2016. 3 a title he held until he was laid off on August 1, FEI's surveillance services. 4 Quality ( "SQS") Department provides supplier quality services to clients who are billed for the In 2015 Caplan worked as SQS Coordinator on a project in Sakhalin Island, Russia. 5 In mid-2015, FEI' s client on the Sakhalin Island project asked FEI to remove Caplan from the project due to his frequent absences. On July 19, 2015, Taylor and representatives of FEI' s Human Resources ( "HR") department met with Caplan to discuss his absences, problems his absences were causing the project, and options available to him for including short-term disability and FMLA leave. 6 taking leave - Taylor ultimately replaced Caplan on the Sakhalin Island project with Henry Howski, and reassigned Caplan to the SASOL Project, a project in Louisiana. 7 Id. at 218:7-12, Exhibit A to FEI's MSJ, Docket Entry No. 31-1, p. 56. See also Oral Deposition of Kenneth J. Taylor ("Taylor Deposition"), p. 61:10-20, Exhibit B to FEI's MSJ, Docket Entry No. 31-2, p. 18; and Declaration of Kenneth Taylor ("Taylor Declaration") , Exhibit G to FEI' s Opposition to Caplan's MPSJ, Docket Entry No. 35-7, p. 3 ~ 4. 3 4 Id. at 59:4-13, Exhibit A to FEI's MSJ, Docket Entry No. 31-1, p. 16. See also Oral Deposition of Kenneth J. Taylor ("Taylor Deposition"), p. 14:12-22, Exhibit B to FEI's MSJ, Docket Entry No. 31-2, p. 7. Taylor Deposition, pp. 32:3-18, 44:19-21, Exhibit B to FEI's MSJ, Docket Entry No. 31-2, pp. 11 and 14. 5 6 Id. at 127:15-129:7, Exhibit B to FEI's MSJ, Docket Entry No. 31-2, p. 35. See also Caplan 2015 absence emails, Exhibit G to FEI's MSJ, Docket Entry No. 31-7. 7 Id. at 18:13-19:8, 126:2-12, Exhibit B to FEI's MSJ, Docket Entry No. 31-2, pp. 8 and 35. -4- Later, in March of 2016 when Caplan began missing work about once a week, he asked Yur and Taylor to allow him to work from home on days that he was not able to travel to the office because of an unspecified health problem. Yur and Taylor both denied Caplan's request to work from home. Caplan did not notify HR personnel about from his request to work home and did not ask for a reasonable accommodation or FMLA leave. 8 In March of 2016 Caplan met with Taylor and Senior HR Specialist Melanie Lindstrom ("Lindstrom") to discuss his ongoing attendance problems. work from home. 9 At the meeting Caplan repeated his request to Caplan was experiencing symptoms that were unpredictable and could incapacitate him for several hours, but he was not aware of the medical condition causing his symptoms . 10 Lindstrom gave Caplan information about leave options, and Caplan eventually elected to take short-term disability leave that began on March 24, 2016. 11 By letter dated April 13, 2016, FEI informed Caplan that his approved short-term disability leave had also been designated as FMLA leave pursuant to FEI's leave policies. 12 In 8 Id. at 62:1-65:21, 161:2-164:19, 232:1-9, Exhibit A to FEI's MSJ, Docket Entry No. 31-1, pp. 17-18, 42, and 59. 9 Id. at 297:22-298:20, No. 31-1, p. 76. Exhibit A to FEI's MSJ, Docket Entry 10 Id. at 70:16-19, 199:6-22, 222:10-224:5, 269:23-272:2, Exhibit A to FEI's MSJ, Docket Entry No. 31-1, pp. 19, 51, 57, 69. 11 Id. at 169:1-170:9 and 232:1-233:12 Exhibit A to FEI's MSJ, Docket Entry No. 31-1, pp. 44 and 59. 12 Id. at 209:7-211:11, Exhibit A to FEI's MSJ, Docket Entry No. 31-1, p. 54; Exhibit R to FEI's MSJ, Docket Entry No. 31-18. -5- June of 2016 Taylor assigned Henry Howski - who had completed the Sakhalin Island project - to the SASOL project to fill the gap left while Caplan was on short-term disability leave. 13 While on leave Caplan was diagnosed with coli tis, 14 but he never informed FEI and never requested an accommodation other than the leave that was granted and the ability to work from home that was not granted. 15 In July of 2016 Caplan informed Taylor and Lindstrom that his doctor authorized him to return to work on 2 016. 16 Taylor instructed Caplan to report to Yur on August 1, 2016. 17 In the afternoon of August 1, 2016, Taylor and August 1, Lindstrom met with Caplan to tell him that he was being laid off in a reduction-in-force. 18 Although eligible for rehire by FEI, Caplan never applied for rehire because FEI had no jobs available. 19 13 Id. at 141:9-21, 236:17-237:5, Exhibit A to FEI' s MSJ, Docket See also Taylor Deposition, Entry No. 31-1, pp. 37 and 60-61. pp. 46:10-49:9, 51:3-8, Exhibit B to FEI' s MSJ, Docket Entry No. 31-2, pp. 15-16. 14 Caplan Deposition, pp. 70:16-71:13, 222:10-223:15, 273:6-14, Exhibit A to FEI's MSJ, Docket Entry No. 31-1, pp. 19, 57 and 70. 15 Id. at 64:14-65:21, 143:21-144:8, 161:2-163:8, 273:6-275:16, and 298:10-20, Exhibit A to FEI' s MSJ, Docket Entry No. 31-1, pp. 17-18, 37, 42, 70, and 76. 16 Id. at 98:13-100:20, Exhibit A to FEI's MSJ, Docket Entry No. 31-1, p. 26. See also Email from Daniel Caplan, Exhibit T to FEI's MSJ, Docket Entry No. 31-20. 17 Id. at 215:16-217:5, Exhibit A to FEI's MSJ, Docket Entry No. 31-1, pp. 55-56. See also Email from Kenneth Taylor, Exhibit u to FEI's MSJ, Docket Entry No. 31-21. 18 Id. at 82:9-12, 187:6-19, Entry No. 31-1, pp. 22 and 48. 19 Id. at 32:17-23, No . 31-1, p. 9 . Exhibit A to FEI's MSJ, Exhibit -6- A to FEI's MSJ, Docket Docket Entry III. FEI's Motion for Summary Judgment Caplan alleges that FEI discriminated against him on the basis of disability in violation of the ADA and the FMLA by discharging him from his position as an Associate Quality Specialist III on August 1, 2016, and by discharging him in retaliation for having taken FMLA and short-term disability leave. 2 ° FEI argues that it is entitled to summary judgment on Caplan's claims because the record evidence, consisting largely of Caplan's deposition admissions, establishes that: ( 1) Caplan cannot establish a prima facie case for discrimination under the ADA; (2) Caplan was laid off for legitimate, nondiscriminatory and nonretaliatory reasons; (3) Caplan has no evidence to establish that FEI's reason for laying him off was pretextual; . . . (5) Caplan cannot establish a retaliation case under either the ADA or the 21 FMLA. Asserting that he has a disability, that he was qualified for his job, that he was discharged because of his disability, that FEI's stated reason for his discharge is not true but, instead, a pretext for disability discrimination and retaliation for having taken FMLA and disability-related leave Caplan urges the court to deny FEI's MSJ. 22 20 See Plaintiff's Original Complaint, Docket Entry No. 1, p. 7. See also Plaintiff's Response, Docket Entry No. 34, p. 1 ("Caplan is no longer proceeding on his ADA failure to accommodate and FMLA interference claims, and they may be dismissed.") 21 FEI's MSJ, Docket Entry No. 31, p. 9. 22 Plaintiff's Response, Docket Entry No. 34, pp. 7-11. -7- A. FEI is Not Entitled Discrimination Claim 1. to Judgment on Caplan's ADA Applicable Law Title I discriminate of the ADA makes against "a § 12112(a). individual who, it unlawful qualified disability in regard to . U.S.C. Summary for individual an employer on the . discharge of employees basis . II to of 42 The ADA defines "qualified individual" as "an with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or u.s.c. 42 desires." § 12111(8). Disability is defined as: (A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment. 42 U.S.C. § 12102(1) (A)-(C). See also Milton v. Texas Department of Criminal Justice, 707 F.3d 570, 573 (5th Cir. 2013). Caplan may establish an ADA discrimination claim by using direct evidence or McDonnell Douglas Seaman v. CSPH, evidence "is the Corp. Inc., indirect v. method of Green, 93 179 F.3d 297, evidence that, if S. 300 proof Ct. 1817 set (1973). (5th Cir. 1999). believed, proves the discriminatory animus without inference or presumption." Jack In The Box, Inc., 376 F.3d 305, -8- forth 310 n.6 in See Direct fact of Rachid v. (5th Cir. 2004). Caplan has not cited direct evidence of discrimination and does not argue that this is a direct evidence case. Caplan's initial burden under the McDonnell Douglas framework is to establish a prima facie case of discrimination based upon his disability by showing (1) he has a disability, for the job, decision, and (3) (2) he was qualified he was subjected to an adverse employment i.e., he was discharged, on account of his disability. Caldwell v. KHOU-TV, 850 F.3d 237, 241 (5th Cir. 2017). If Caplan establishes a prima facie case of discrimination, a presumption of discrimination arises, and the burden shifts to FEI to articulate a legitimate, non-discriminatory reason for discharging him. at 241-42. Once FEI articulates a legitimate, Id. nondiscriminatory reason for the discharge, the burden shifts back to Caplan who may prove intentional discrimination by producing evidence from which the jury could conclude that FEI's articulated reason is a pretext for discrimination. Id. at 242. "A plaintiff may show pretext either through evidence of disparate treatment or by showing that the employer's credence." F. 3d 374, Id. 378-79 proffered explanation (quoting Jackson v. (5th Cir. 2010)). is Cal-W. false or unworthy Packaging Corp., of 602 "An explanation is false or unworthy of credence if it is not the real reason for the adverse employment action." Id. (quoting Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003)) -9- 2. Application of the Law to the Undisputed Facts (a) Caplan Establishes a Prima Facie Case (1) Caplan Has a Disability FEI has not challenged Caplan's assertion that he has colitis or that colitis may be considered a disability under the ADA. 23 Therefore, for the purposes of this motion and the prima facie case analysis, the disability. court accepts that Caplan is a person with a See E.E.O.C. v. Chevron Phillips Chemical Co., LP, 570 F.3d 606, 618 (5th Cir. 2009) ("[R]elapsing-remitting conditions like colitis can constitute ADA disabilities depending on the nature of each individual case."). (2) Caplan Is a Qualified Individual FEI argues that Caplan cannot establish a prima facie case of ADA discrimination because qualified individual. 24 he cannot establish An employee is a that he was a "qualified individual" under the ADA if he, "with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." E.E.O.C. v. LHC Group, Inc., 42 u.s.c. 773 F. 3d 688, 697 § 12111(8). (5th Cir. 2014) (citing Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1093 (5th 23 FEI's MSJ, Docket Entry No. 31, p. 19. 24 FEI' s MSJ, Docket Entry No. 31, pp. 19-23. See also Defendant Fluor Enterprises, Inc.'s Reply in Support of its Motion for Summary Judgment ( "FEI' s Reply") , Docket Entry No. 37, pp. 5-10. -10- Cir. 1996) (per curiam) ("To avoid summary judgment on whether he is a qualified individual, [plaintiff] needs to show 1) that he could perform the essential functions of the job in 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."). "A function marginal relationship' Chandler v. is 'essential' to the City of Dallas, it employee's 2 F.3d 1385, modified on other grounds by Kapche v. F. 3d 493 (5th Cir. 2002) if bears job." 1393 'more Id. (5th Cir. than a (quoting 1993), City of San Antonio, 304 (per curiam) ) . FEI argues that Caplan was not a qualified individual because [r]egular, predictable attendance on location was at all times an essential function of Caplan's job as an Associate Quality Specialist III and in the role he was performing prior to going on leave - an SQS Coordinator, because these positions required regular face-to-face interaction and team coordination. 25 Citing Credeur v. Louisiana, Through the Office of the Attorney General, 860 F.3d 785, 793-95 (5th Cir. 2017), FEI argues that the ability to appear for work is generally recognized as an essential job function, that Caplan's deposition testimony clearly indicates that he could not perform this essential function of his job and, therefore, that Caplan was not a qualified individual under the 25 FEI's MSJ, Docket Entry No. 31, p. 19 (citing Associate Quality Specialist III, Job Description, p. 2, Exhibit F to FEI's MSJ, Docket Entry No. 31-6, p. 3i and Declaration of Kenneth Taylor ("Taylor Declaration"), p. 2 ~ 4, Exhibit AA to FEI's MSJ, Docket Entry No. 31-27, p. 3 ~ 4. -11- In Credeur the ADA. Fifth Circuit observed that "there is a general consensus among courts, including ours, that regular worksite attendance is an essential function of most jobs." 793. Id. at Asserting that Caplan admitted during his deposition that neither the timing nor the severity of his colitis flare-ups can be predicted, and that when flare-ups occur he is unable to work either on location or at horne, FEI argues that Caplan has failed to produce any evidence that he would have been able to perform the essential elements of his job - or any other job - with or without reasonable accommodations. 26 Acknowledging that his FMLA leave began on March 24, 2016, and ended on June 17, 2016, and that he continued on short-term disability leave until August 1, 2016, the date his doctor released him to return to work, Caplan argues that he was a qualified individual with a disability because his doctor released him to return to work without any restrictions. 27 In his Declaration Caplan states: At the time I was released to return back to work, my health had improved a lot based on the treatment I had received over the past several months, and I did not have any restrictions in order to do my job. I could perform my job duties without the need for any accommodations, 26 FEI,s MSJ, Docket Entry No. 31, pp. 20-21 (citing Caplan Deposition, p. 73:1-24, Docket Entry No. 31-1, p. 20). 27 Plaintiff,s Response, Docket Entry No. 34, pp. 3 and 9 (citing Declaration of Daniel Caplan ("Caplan Declaration"), Exhibit 1 to Plaintiff,s Response, Docket Entry No. 34-1, p. 1 ~~5-6; and Caplan Return to Work Form, Exhibit 8, Docket Entry No. 34-8). -12- and I did not anticipate having any unexpected absences. I know this because of my years of experience/work in the Quality Department of Fluor. 28 Citing his work record and the Taylor Deposition, Caplan argues that there is no dispute that he met the minimum qualifications for the job he held, and that FEI had no problems with his performance other than his absences. 29 Citing Hacienda Records, L.P. v. Ramos, 718 F. App'x 223, 235 (5th Cir. 2018) (per curiam) , FEI argues that the court should disregard and strike Caplan's Declaration testimony because "contradicts whether his predictable his prior coli tis sworn deposition prevented him attendance, without from testimony concerning demonstrating explanation." 30 it In regular, Hacienda Records, 718 F. App'x at 235, the court applied the sham affidavit rule articulated in S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996), to hold that the plaintiff could not raise a fact issue in the face of summary judgment simply by submitting an affidavit that contradicts prior sworn testimony. See also Cleveland v. Policy Management Systems Corp., 119 S. Ct. 1597, 1603 (1999) (recognizing that [f]ederal courts "have held with virtual 28 Caplan Declaration, Exhibit 1 to Plaintiff's Response, Docket Entry No. 34-1, p. 1 ~ 6. 29 Plaintiff's Response, Docket Entry No. 34, p. 9 (citing Taylor Deposition, pp. 121:9-14, and 129:13-16, Exhibit 3 to Plaintiff's Response, Docket Entry No. 34, pp. 19-20). 3 °FEI' s Reply, Docket Entry No. 3 7, p. 7. See also FEI' s Objections and Motion to Strike, Docket Entry No. 38, pp. 5-9, 13. -13- unanimity that a party cannot create a genuine issue of fact sufficient to survive summary judgment simply by contradicting his or her own previous affidavit that sworn testimony flatly contradicts (by, that say, filing party's a later earlier sworn deposition) without explaining the contradiction or attempting to resolve the Asserting disparity"). that "[t]he deposition questions were not focused on Caplan's health at the time he was returning to work,"" 31 and that FEI's "attorney did not ask Caplan questions surrounding his release to return to work without restrictions, which is actually consistent with his declaration," 32 Caplan argues "the fact that [he] did actually return to work on August 1, 2016, in compliance with his doctor's release, confirms that he was able to do his job at that time." 33 Caplan's deposition testimony the about symptoms he experiences when his colitis flares up does not contradict the evidence provided either by his doctor's release or by his declaration because his deposition testimony does not address the efficacy of the treatment he received while on leave frequency with which he experiences colitis flare-ups. 31 or the FEI's cite Plaintiff' s Response to Defendant's Objections to Plaintiff's Summary Judgment Evidence and Motion to Strike ("Plaintiff's Response to Objections and Motion to Strike"), Docket Entry No. 39, p. 2, n.2. 32Id. 33 Id. at 2. -14- to Caplan's poor attendance history before taking FMLA and shortterm disability leave does not support FEI's contention that Caplan was not a qualified individual with a disability because FEI acknowledges that "even before Caplan was diagnosed with colitis, or went on short-term disability, he was not regularly attending work and for a variety of reasons which were non-health related." 34 Because Caplan declares that when he was released to return to work his health had improved based on the treatment he had received 35 while on leave, 2016, that because the release to return to work on August 1, Caplan received from restrictions, 36 his doctor does not cite any and because Caplan's deposition testimony regarding the symptoms he experiences when his colitis flares up does not address either the efficacy of the treatment Caplan received while on leave or the frequency with which Caplan experiences flare-ups, the court concludes that Caplan has presented evidence capable of proving that he is a qualified individual, i.e., a disabled individual capable of performing the essential functions of his position without a reasonable accommodation. objection to ~ FEI's motion to Accordingly, FEI's 6 of Caplan's Declaration will be overruled, strike~ and 6 of Caplan's Declaration will be denied. 34 FEI's MSJ, Docket Entry No. 31, p. 20 (citing emails from Caplan stating his inability to come to work for various reasons, Exhibits G and I to FEI's MSJ, Docket Entry Nos. 31-7 and 31-9). 35 Caplan Declaration, Exhibit 1 to Plaintiff's Response, Docket Entry No. 34-1, p. 1 ~ 6. 36 Release to Work Form, Docket Entry No. 34-8. Exhibit 8 to Plaintiff's Response, -15- {3) Caplan's Disability Factored Decision to Discharge Him into FEI's FEI argues that Caplan cannot establish a prima facie case of ADA discrimination because he cannot establish that his colitis was a factor in the layoff decision. 37 Citing Taylor v. Principal Financial Group, Inc., 93 F.3d 155, 163 (5th Cir.), cert. denied, 117 S. Ct. 586 (1996), FEI argues that Caplan must demonstrate "that the employer knew of limitation." 38 [his] substantial physical or mental Citing Caplan's deposition testimony that he never told any manager at FEI, including Taylor, that he had colitis, and that he never requested any accommodation from FEI and he never discussed his medical treatment or condition with Taylor after he was diagnosed with colitis, FEI argues that [b]ecause there is no evidence in this case that Taylor was aware of Caplan's colitis, or any physical condition that he alleges was disabling, Caplan's colitis could not possibly have played a role in Taylor's decision to terminate his employment. Nor does Caplan have competent summary judgment evidence indicating that Taylor perceived him as disabled while he was out on medical leave. Because there is no evidence that Taylor was aware of Caplan's claimed disability at the time he selected Caplan for layoff, FEI is entitled to judgment as a matter of law. 39 ~ Caplan responds by citing 4 of his declaration and emails that he sent to Taylor and Lindstrom keeping them informed about his on-going need for medical tests and treatment - 37 FEI' s MSJ, Docket Entry No. 31, pp. 19-23. Reply, Docket Entry No. 37, pp. 5-10. 38 FEI's MSJ, Docket Entry No. 31, p. 21. 39 Id. at 22. -16- including See also FEI's hospitalization - throughout the period that he was on FMLA and short-term disability leave, 40 and the release that he obtained from his doctor allowing him to return to work without restrictions on August 1, 2016. 41 Caplan also cites his own deposition testimony that he "was fired on the same day he returned from his medical leave, and Taylor specifically referenced [his] and being gone so long." 42 and Lindstrom informed disability leave The emails that Caplan sent to Taylor them of the symptoms that he was experiencing and his on-going need for short-term disability leave, and the work release without restriction. that Caplan received from his doctor was Regarding Taylor's explanation for why he was discharged, Caplan testified as follows: Q. As accurately as you recall, can you tell me about the conversation -- that is, who said what -- in the meeting on August 1, 2016, with yourself, Ms. Lindstrom, and Mr. Taylor? A. Yes. Ken simply said, "Since you were gone so long, we had to replace you on the job; and we no longer have a spot for you, and we have to let you go. II 40 Plaintiff's Response, Docket Entry No. 34, p. 9 (citing Exhibit 1, Caplan Declaration, Docket Entry No. 34-1, p. 1 ~ 4 ("I kept Ken Taylor and human resources informed about my medical status and when I could anticipate returning to work. I sent Mr. Taylor several emails between April and July 2016 about my status. and Exhibit 12, emails from Caplan to Taylor and Lindstrom, Docket Entry No. 34-12, pp. 1-13). 11 ), 41 Release to Work Form, Docket Entry No. 34-8. Exhibit 8 to Plaintiff's Response, 42 Plaintiff' s Response, Docket Entry No. 34, p. 9 (citing Exhibit 2, Caplan Deposition, pp. 101:9-102:18, 104:17-22, Docket Entry No. 34-2, p. 4). -17- Q. And do you recall it in exactly those words, or do you recall anything different? A. No, Q. Since you were gone replace you? A. Uh-huh. Q. Yes? A. Correct. Q. And so to the best of your recollection as you sit here today, as accurately as you can repeat it, those are the words he used: Because you have been gone so long, we had to replace you? A. Yes, sir. Q. Did he use the word "layoff"? being laid off. A. He told me I was being laid off, but his main words: Since you were gone so long, we had to replace you on the job. Q. What, if anything, did you say in response? A. I said, "This is completely unfair. I was gone on disability. From what I understood, you have to hold my position and you can't replace me on this project." Q. What, if anything, did he and/or Ms. Lindstrom say in response? A. He responded that, because I was gone so long, they had to replace me; and you're being laid off. Because you're not on disability anymore, we can lay you off. 43 that was about dead on. so long, 43 the company had to He told you you were Caplan Deposition, pp. 101: 9-102: 18, Exhibit 2 to Plaintiff's Response, Docket Entry No. 34-2, p. 4. -18- Moreover, in a letter that FEI sent to the Equal Employment Opportunity Commission ("E.E.O.C.") regarding Caplan's complaint, FEI stated "Charging Party exhausted his 12 weeks of FMLA leave on June 17, 2016, but remained on leave of absence subsequent to that as an ADA accommodation. " 44 The summary judgment evidence is capable of establishing that Taylor and Lindstrom, the people who discharged Caplan the day he returned from short-term disability leave, knew considered that to be Caplan suffered disabling, and from that a physical knowledge of condition Caplan's condition factored into their decision to discharge him. (b) FEI Has Articulated a Legitimate, Discriminatory Reason for Caplan's Discharge Non- FEI argues that it i.s entitled to summary judgment on Caplan's claim for disability discrimination arising from Caplan's discharge because Caplan was discharged for a legitimate, non-discriminatory reason, he was discharged necessitated by lack of work. 45 non-discriminatory reason in a reduction-in-force Reduction- in- force is a legitimate, for discharging an employee. See E.E.O.C. v. Texas Instruments, Inc., 100 F.3d 1173, 1181 (5th Cir. 1996) (recognizing that a reduction-in-force "is itself a legitimate, nondiscriminatory reason for discharge"). 44 Exhibi t 45 FEI's MSJ, Docket Entry No. 31, pp. 22-26. 7 to Plaintiff's Response, Docket Entry No. p. 4. -19- 34-7, (c) Caplan Raises a Fact Issue as to Pretext Under the McDonnell Douglas burden-shifting framework, once FEI has produced evidence of a legitimate, nondiscriminatory reason for the adverse employment action, Caplan must introduce evidence that would enable a reasonable jury to find either (1) that the defendant's reason is not true, but is instead a pretext for discrimination (pretext alternative); or (2) 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 (mixed-motives alternative) . Rachid, 376 F.3d at 312 (internal quotation and alteration marks omitted) . Caplan "may show pretext either through evidence of disparate treatment or by showing that [FEI' s] explanation is false or unworthy of credence." proffered Caldwell, 850 F.3d at 242 (quoting Jackson, 602 F.3d at 378-79). Citing Texas Instruments, 100 F.3d at 1181, FEI argues that in the context of a reduction-in-force, the fact that an employee is qualified for his job is less relevant because some employee may have to be let go despite competent performance; "the issue is whether Caplan can present evidence that he was selected for layoff because of his disability or the exercise of his FMLA rights, while similarly situated employees "[i]ndividuals in were different retained. " 46 positions Asserting with that different responsibilities or qualifications, even if they are superficially 46 Id. at 24. -20- comparable, are not similarly "undisputed evidence Quality Specialist situated, " 47 FEI argues that . shows that Caplan was the only Associate III employed by FEI at the time of his termination; thus, Caplan cannot point to any other employee with his same job title and pay classification that was treated differently. " 48 Caplan does not attempt to show pretext by disparate treatment but, instead, argues that FEI's stated reason for his discharge is false or unworthy of credence because there was work available and because there are "material inconsistencies and shifting explanations as to when the decision was made to terminate [him] and who were comparable employees. " 49 stated reason for Caplan argues discharging him was that that there although the was no work available, his own deposition and declaration testimony as well as the declaration testimony of Kenny Persad are evidence that FEI had plenty of work available when he returned on August 1, 2016. 50 In pertinent part Caplan testified: I did return back to work in the early morning of Monday, August 1, 2016. I began getting my files back and getting up-to-speed on my work. I worked a full day that day, about seven hours. Based on my work that day, I 47Id. 48 Id. at 25-26 (citing Taylor Declaration, Exhibit AA to FEI's MSJ, Docket Entry No. 31-27, pp. 4-7 ~~ 14-23) 49 Plaintiff's Response, Docket Entry No. 34, p. 10. -21- could tell there was plenty of work available and that I would be busy. 51 Caplan also testified that when he returned to work on August 1, 2016, he started to get his work back. 52 In pertinent part Persad testified that he worked closely with Caplan, they often performed similar job duties, and their specific job titles did not matter. 53 Persad also testified: I was surprised when I found out that Daniel was fired. Based on my employment and work at [FEI] , I was aware that there was plenty of work available in the Quality Department when Daniel came back to work in mid-2016, and he could have worked on a project. 54 FEI objects to and moves to strike this evidence that Caplan cites in support of his contention that FEI had work available when it discharged Persad's him because declarations knowledge, and contains is the testimony conclusory, hearsay. 55 in both not Caplan's based Neither Caplan on and personal nor Persad provide any testimony capable of establishing that their job duties or positions provided them knowledge or expertise to assess FEI's 51 Caplan Declaration, Exhibit 1 to Plaintiff's Response, Docket Entry No. 34-1, p. 1 ~ 7. 52 Caplan Deposition, p. 217:4-5, Response, Docket Entry No. 34-2, p. 6. Exhibit 2 to Plaintiff's 53 Declaration of Kenny Persad ( "Persad Declaration") , Exhibit 13 to Plaintiff's Response, Docket Entry No. 34-13, p. 1 ~~ 4-5. 54 Id. ~ 6. 55 FEI's Reply, Docket Entry No. 37, p. 7. See also FEI's Objections and Motion to Strike, Docket Entry No. 38, pp. 9-14. -22- staffing requirements. Caplan's and Persad's Accordingly, conclusory the court statements concludes regarding that their perceptions of the availability of work at FEI in August of 2016 are not sufficient to raise genuine issues of material fact for trial as to whether FEI's stated reason for Caplan's discharge was pretextual, and that FEI's objection and ~~ to~ 7 of Caplan's Declaration 4-5 of Persad's Declaration should be sustained and FEI's motion to strike these paragraphs should be granted. McHugh, litigant 589 F. App'x 717, cannot survive 720 summary conclusory averments alone") Caplan argues that (5th Cir. 2014) judgment on See Cavada v. (per curiam) the strength of (citing Little, 37 F.3d at 1075). FEI' s reasons for discharging him are inconsistent and shifting because when comparing [FEI's] EEOC position statement to its interrogatory answer and to Taylor's deposition testimony, there are material inconsistencies and shifting explanations as to when the decision was made to terminate Caplan and who were comparable employees. Accordingly, there is sufficient evidence to show that [FEI] 's articulated reason for terminating Caplan is false, and a jury should be permitted to evaluate the evidence. Therefore, [FEI] 's motion with respect to the disability discrimination claim must be denied. 56 Caplan also argues: In its interrogatory answers, [FEI] states that the decision to terminate Caplan was made on August 1, 2016, as a reduction in force. Ex. #11, Interrogatory No. 2. But in its EEOC position statement, [FEI] stated that the decision to terminate Caplan was made in July 2016. 56 ("a Plaintiff's Response, Docket Entry No. 34, pp. 10-11. -23- Ex. #7, p. 4. Taylor testified that he made the decision to terminated Caplan "immediately following the receipt" of Caplan's email "regarding his imminent return to work." Ex. #3 (Taylor Dep.), 58:2-13. The email was sent on July 28, 2016. Ex. #9. But then Taylor also testified that [FEI's] statement to the EEOC about Caplan being selected for layoff in July 2016 is not correct. Ex. #3, 109:10-15. These explanations are inconsistent and shifting, and also confirms that [FEI] submitted false information to the EEOC. [FEI] indicated, in its EEOC position statement that it apparently selected Henry Howski over Caplan. Ex. #7, p. 4. However, Taylor testified that Howski was not retained over Caplan, was not compared to Caplan, and that [FEI's] statement to the EEOC was incorrect. Ex. #3, 107:14 - 108:8. He even testified it "was never a consideration" as to whether to retain Howski over Caplan. Ex. #3, 103:8-12. These explanations are inconsistent and shifting, and further confirms that [FEI] submitted false information to the EEOC. 57 Caplan argues that Taylor's conflicting statements regarding when he decided to discharge Caplan, i.e., July or August, and the conflicting statements that FEI made to the EEOC, i.e., that FEI compared Caplan to Howski- the person who filled Caplan's position as SQS Coordinator on the SASOL project -when making the discharge decision, and that Taylor made during his deposition, i.e., that Caplan was not compared to Howski but, instead, to Jorge Flores, an employee who despite having the same job title and pay grade as Caplan had different job duties, i.e., Flores worked as a shop inspector while Caplan worked as a SQS Coordinator, 58 is evidence 57 Id. at 4. 58 SeeTaylorDeposition, pp. 58:2-63:15,107:14-109:15,130:17132:19, Exhibit B to FEI's MSJ, pp. 18-19, 30, 36. See also Oral Deposition of Melanie Lindstrom -24- ("Lindstrom Deposition"), (continued ... ) from which a rationale fact-finder could conclude that FEI's stated reason for his discharge is false, unworthy of credence, and a pretext for intentional discrimination. 59 The Fifth Circuit has recognized a legal basis for inferring pretext from inconsistent explanations. See Caldwell, 850 F.3d at 242 (citing Gee v. Principi, 289 F.3d 342, 347-48 (5th Cir. 2002, and Burrell v. Dr. Pepper/Seven Up Bottling Group, Inc., 482 F.3d 408, 412 n.11 (5th Cir. observed that the plaintiff discharge for defendant's transformed over time. In Caldwell the Fifth Circuit 2007)). as reasons part of for a having selected the reduction-in-force had First, in letters to Caldwell's counsel and in response to interrogatories, the defendant stated that Caldwell was lazy and shirked his certain type of work. E.E.O.C. responsibilities by refusing to do a Id. at Then in a 243. the defendant stated that Caldwell was a letter to "slacker" who simply didn't take the initiative to undertake optional tasks. Then, the Id. before the district court the defendant argued that Caldwell was unwilling and/or unable to adapt to technological changes. Id. Finally, Caldwell's immediate supervisor who was responsible for the ultimate decision to discharge him, testified before the district court that the discharge decision had "absolutely nothing at all to do with Caldwell's work ethic." Id. The Fifth Circuit 58 ( • • • continued) pp. 59-60, Exhibit No. 34-4, pp. 4-5. 59 4 to Plaintiff's Response, Docket Entry Plaintiff's Response, Docket Entry No. 34, pp. 4-5 and 10-11. -25- held that these differing statements evinced inconsistency in the defendant's explanations for discharging Caldwell and were thus Id. & n.5. probative of their truth. In Burrell an employer at different times offered different explanations plaintiff. for its decision to promote an employee over the 482 F.3d at 413. Before the EEOC, the employer stated that the plaintiff lacked "purchasing experience." Id. But before the district court, the employer stated that the plaintiff lacked "bottling experience." And before the Fifth Circuit the employer stated that the plaintiff lacked "purchasing experience in the bottling industry." Id. reconcile the inconsistency promoting the plaintiff Although between offered to experience") and to the Fifth Circuit the bottling industry") clarification of employer was felt the the employer the explanations the E.E.O.C. tried for to not ("purchasing ("purchasing experience in by describing the second statement as a type of important, purchasing the experience Fifth Circuit held that the that the inconsistency in combination with evidence suggesting the plaintiff was better qualified than the employee ultimately promoted created a genuine issue of material fact regarding whether the employer's hiring decision was based on the nondiscriminatory reason advanced by the employer. Id. So, too, in Gee, 289 F.3d at 342, the Fifth Circuit held that because the conflicting testimony went to the core of the employer's hiring decision, a reasonable fact-finder could conclude that the defendants' asserted justifications were -26- "unworthy of credence" and therefore a pretext for intentional discrimination. Although FEI used the same reason each time it gave an explanation for Caplan's discharge, i.e., Caplan was discharged in a reduction-in-force necessitated by a reduction in FEI's workload, the issue is whether Caplan has cited evidence capable of establishing that FEI decided to discharge him instead of Howski, Flores, or someone else because of his disability. The discrepancy in timing about which Caplan complains, i.e., whether Taylor made the decision to discharge him on July 28th when Caplan sent the email stating that he could return to work on August 1st, or on August 1st when he returned to work, is not the kind of blatant inconsistency that characterized Caldwell, Burrell, and Gee. the inconsistency as to rationale for FEI' s But decision to select Caplan for discharge instead of Howski, Flores, or someone else, is an inconsistency from which a reasonable fact-finder could conclude that FEI's stated reason for discharging Caplan is false, unworthy of credence, and a pretext for disability discrimination. In its letter to the E.E.O.C., FEI stated that when Caplan notified the Quality department that he would be released to return to work on August 1, 2016, the Quality Department evaluated whether or not there was a project to which [Caplan] could be assigned. A project could not be located, and therefore, consistent with its established procedure regarding surplus personnel, [FEI] made staffing decisions based on employee rankings and experience to identify surplus personnel and opted to retain Mr. Howski over [Caplan] . Specifically, Mr. Howski was consistently rated higher than [Caplan] in the department rankings. All Quality personnel were rated on the same set of performance factors and skills -27- as part of the ranking process, and Mr. Howski repeatedly received a higher overall rating than [Caplan] . Mr. Howski also had more relative experience than [Caplan] : Mr. Howski had over 40 years of Quality experience, whereas [Caplan] had only ten years of Quality related experience. Mr. Howski had significant field experience too, having worked at various sites domestically and internationally, while [Caplan] 's experience in the field was limited. Additionally, since [Caplan] was the lowest ranked employee in his job group, he was unable to bump any other employee from their assigned project. Thus, in July 2016, [Caplan] was selected for layoff. H. R. and the department manager met with [Caplan] on August 1, 2016[,] and informed him that he had been selected for layoff due to lack of available work. 60 Taylor, the manager of the Quality Department, gave testimony during his deposition that conflicts with these statements that FEI made to the E.E.O.C. For example, FEI told the E.E.O.C. that it opted to retain Howski over Caplan because Howski was consistently rated higher than Caplan and had more relevant experience than Caplan. But Taylor testified that FEI did not correctly state how the decision to discharge Caplan was made, he never compared Howski to Caplan, he did not know if anybody else ever compared Howski's rankings to Caplan's rankings, and he did not know if Howski would have been rated higher than Caplan. 61 FEI told the E.E.O.C. that all Quality personnel were rated on the same set of performance factors and skills as part of the ranking process, and that since Caplan was the lowest ranked employee in his job group, he was unable to bump any other employee from their assigned project, and 60 Exhibit 7 to Plaintiff's Response, Docket Entry No. 34-7, p. 4. 61 Taylor Deposition, pp. 103:8-12, 107:14-108:22, Exhibit B to FEI's MSJ, Docket Entry No. 31-2, pp. 29-30. -28- thus was selected for layoff. But Taylor testified that FEI's reference to job group in its letter to the E.E.O.C. referred to job title, 62 that FEI's work process was to compare people with the same job title regardless of whether they had the same job duties, 63 and that because Caplan had the same job title, Quality Specialist III, i.e., Associate as Jorge Flores, 64 who worked as a shop inspector, Flores was the employee with whom Taylor compared Caplan for layoff. 65 same Taylor's testimony that Caplan and Flores had the job title conflicts with the assertion in FEI' s shows that Caplan was the only Associate "undisputed evidence Quality Specialist MSJ that III employed by FEI at the time of his termination; thus, Caplan cannot point to any other employee with his same job title and pay classification that was treated differently. " 66 The inconsistent and conflicting evidence that FEI has advanced for how and why Caplan was compared to other employees and ultimately selected for layoff is evidence from which a reasonable 62Id. at 109:7-9, No. 31-2, p. 30. 63Id. at 82:2-22, No. 31-2, p. 24. 64 Id. Exhibit B to FEI's MSJ, Docket Entry Exhibit B to FEI's MSJ, Docket Entry at 61:10-63:10, No. 31-2, pp. 18-19. Exhibit B to FEI's MSJ, Docket Entry 65 Id. at 130:17-131:18, Exhibit B to FEI's MSJ, Docket Entry No. 31-2, p. 36. 66 FEI' s MSJ, Docket Entry No. 31, pp. 25-26 (citing Taylor Declaration, Exhibit AA to FEI's MSJ, Docket Entry No. 31-27, pp . 4 - 7 ~ ~ 14 - 2 3 ) . -29- fact-finder could find that FEI's stated reasons for his discharge are false or not worthy of credence and, instead, are pretexts for disability discrimination. Moreover, this case is not one of the rare instances where the plaintiff has only presented "a weak issue of fact as to whether the employer's reason was untrue." 120 S. Ct. at 2109. uncontroverted occurred." Reeves, Nor is it one in which there is "abundant and independent Id. at 2109. evidence that no discrimination had Accordingly, the court concludes that FEI is not entitled to summary judgment on Caplan's ADA discrimination claim. B. FEI is Not Entitled to Summary Judgment on Caplan's FMLA and ADA Claims for Retaliatory Discharge Caplan discharge. has asserted FMLA and ADA claims for retaliatory FEI argues that it is entitled to summary judgment on plaintiff's FMLA and ADA retaliatory discharge claims because FEI had a valid non-retaliatory reason for terminating Caplan's employment, i.e., reduction-in-force. 1. Applicable Law The FMLA 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. 67 § 260l(b) . 67 It also The 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. 2 9 u.S. C. § 2611(2) (A). FEI does not dispute either that it is a covered employer or that Caplan was eligible for FMLA leave. -30- contains a provision protecting employees discrimination for exercising FMLA rights. from retaliation or Mauder v. Metropolitan Transit Authority of Harris County, Texas, 446 F.3d 574, 580 (5th Cir.) cert. applies denied, 127 S. Ct. the McDonnell Douglas 230 (2006). framework "The Fifth Circuit to analyze retaliation claims under [both] the FMLA [and the ADA], noting that 'there is no significant difference between such claims under the FMLA and similar claims under other anti-discrimination laws.'" Hunt v. Rapides Healthcare System, LLC, 277 F.3d 757, 768 (5th Cir. 2001). Therefore, in order to establish a prima facie case of retaliation under either the FMLA or the ADA Caplan must show that: (1) he engaged in activity protected by the FMLA and/or the ADA; (2) he suffered an adverse employment action; and (3) the adverse decision was made in retaliation for having engaged in activity protected by the FMLA and/or the ADA. Id. Once Caplan establishes a prima facie case the burden shifts to FEI to articulate a legitimate nonretaliatory reason for its employment action. Id. Thereafter, the burden shifts back to Caplan to "'adduce evidence that would permit a reasonable trier o[f] fact to find that the proffered reason is a pretext for retaliation. '" Medina v. Ramsey Steel Co. , Inc. , 23 8 F.3d 674, 684 (5th Cir. 2001). This requires Caplan to demonstrate that the adverse employment action would not have occurred "but for" his protected activity. Id. See also Jenkins v. Cleco Power, LLC, 487 F.3d 309, 316-17 (5th Cir. 2007) Logistics, curiam) L.L.C., 631 F. App'x 204, ( FMLA) . -31- 210 (ADA); Garcia v. Penske (5th Cir. 2015) (per 2. Application of the Law to the Undisputed Facts The evidence in this case easily satisfies the elements of a prima facie case for both Caplan's FMLA and his ADA retaliation claims. Caplan was protected under both the FMLA and the ADA because he took leave for a serious illness - colitis, and when his FMLA leave expired he continued on short-term disability leave, which FEI told accommodation. 68 the E. E. 0. C. it extended to Caplan as an ADA Caplan suffered an adverse employment action when FEI discharged him the day he returned from short-term disability leave. At issue is whether Caplan has cited evidence capable of establishing that FEI made the adverse employment decision to discharge him in retaliation for Caplan's having exercised rights to leave under either the FMLA or the ADA. This causal link element of a prima facie case is satisfied here by the fact that FEI discharged Caplan the day he returned to work from disability leave, which was less than two months after the expiration of his FMLA leave. in-force necessitated legitimate, arguments FEI argues that Caplan was discharged in a reductionby a decline non-discriminatory addressed in § in reason. III.A.2(c), workload, Because above, with which the is a pretext respect to Caplan's ADA discrimination claim apply equally to Caplan's claims for retaliation under the FMLA and the ADA, summary judgment on these claims will be denied. 68 Exhibit 7 to Plaintiff's Response, p. 4. -32- FEI' s motion for See Caldwell, 850 Docket Entry No. 34-7, F.3d at 246 (citing Miller v. Metrocare Services, 809 F.3d 827, 832 (5th Cir.), cert. denied, 136 S. Ct. 2463 IV. (2016)). Caplan's Motion for Partial Summary Judgment Asserting that FEI failed to provide details regarding the factual bases for its assertion of affirmative defenses, Caplan moves for partial summary judgment on two affirmative defenses: • "Plaintiff's claims are barred, or [his] recovery should be offset, by the after-acquired evidence doctrine, if applicable." Docket #5, p. 15, ,13. • "Plaintiff has suffered no damages; alternative, Plaintiff has failed to mitigate his damages, if any." Docket #5, p. 16, ,23. 69 In response FEI withdraws the affirmative defense based on after-acquired evidence, 70 and argues that FEI should be permitted to try its affirmative defense of failure to mitigate damages to the jury because: (1) Caplan's conclusory Motion is insufficient to shift the burden to FEI, and, even if it were sufficient, ( 2) there is a genuine issue of material fact as to whether substantially equivalent work was available to Caplan and whether Caplan exercised reasonable diligence to obtain it. There have been numerous job postings since Caplan's termination from FEI on August 1, 2016 for quality control positions that were substantially equivalent to Caplan's position as an Associate Quality Specialist III for FEI. But the record evidence supports the conclusion that Caplan did not exercise reasonable diligence in applying for or otherwise seeking out these positions. Indeed, Caplan simply failed to apply for any jobs for several months after FEI laid him off, including for the past three months immediately preceding the 69 7 Caplan's MPSJ, Docket Entry No. 28, p. 1. °FEI's Opposition to Caplan's MPSJ, Docket Entry No. 35, p. 8. -33- filing of this Response. should be denied. 71 A. Accordingly, Caplan's Motion Applicable Law To recover damages in an employment discrimination case, a plaintiff must mitigate his damages by searching for substantially equivalent employment. West v. Nabors Drilling USA, Inc., 330 F.3d 379, 393 (5th Cir. 2003) that employment which "Substantially equivalent employment is affords virtually opportunities, compensation, job conditions, status position and as the identical responsibilities, from claimant has been discriminatorily terminated." Fifth Circuit are promotional which Id. split over whether employers working the Courts in the asserting this defense must prove both that substantially equivalent work was available and that the plaintiff failed to exercise reasonable diligence to obtain it. Compare id. ("Although the employer is normally required to prove that substantially equivalent work was available and that the former employee did not exercise reasonable diligence to obtain it, once the 'employer proves that an employee has not made reasonable efforts to obtain work, the employer does not also have to establish equivalent employment.'") F.2d 1189, 1193 the availability of substantially (quoting Sellers v. Delgado College, 902 (5th Cir. 1990), cert. denied, 111 S. Ct. 525 (1991), with Sparks v. Griffin, 460 F.2d 433, 443 (5th Cir. 1972) (defendant must prove both failure -34- to exercise diligence and availability of substantially equivalent Because employment) . neither West nor Sellers was an en bane decision, courts in this district have held that the Fifth Circuit's earlier holding in Sparks controls and that defendants must, therefore, prove both the availability of substantially equivalent employment and that the plaintiff failed to exercise reasonable substantially equivalent employment. Powers Homes, Inc., 613 F. Supp. diligence to obtain See Miles-Hickman v. David 2d 872, 887 & n.22 (S.D. Tex. 2009). B. Application of the Law to the Undisputed Facts Caplan argues that FEI "has failed to present any facts or evidence that suggest [he] did not mitigate his damages.n 72 FEI responds that [r] egardless of which standard is applied, Caplan's Motion must be denied because the summary judgment evidence shows that there is a genuine issue of material fact as to: (1) whether substantially equivalent work was available to Caplan; and (2) whether Caplan exercised reasonable diligence to obtain it. 73 1. FEI Raises a Fact Issue as to Substantially Equivalent Employment Availability of Citing Caplan's deposition testimony as well as the Texas Workforce Commission's website, FEI argues that "[t] he summary judgment evidence shows that numerous quality control positions substantially equivalent to Caplan's position at FEI were available 72 Caplan's MPSJ, Docket Entry No. 28, p. 3. 73 FEI' s Opposition to Caplan's MPSJ, Docket Entry No. 35, p. 18. -35- from the day FEI laid Caplan off until th [e] present. " 74 FEI's reliance on Caplan's deposition testimony is not persuasive. In pertinent part Caplan testified that after leaving FEI he was told by the CEO of his former employer, B.I.E. International, that there were no jobs at B.I.E.'s United States offices, and that although B.I.E. had obtained a contract overseas it would not create job positions within his organization. 75 B. I.E. had know. " 76 jobs available Nevertheless I When asked if he knew whether overseas, Caplan answered, "I don't FEI submit ted copies of postings from August and October of 2017 for jobs that appear to have been equivalent to the position that Caplan held at FEI. 77 Accordingly, the court concludes that FEI has presented evidence capable of establishing the availability of substantially equivalent employment. 2. FEI Raises a Fact Issue as to Whether Caplan Has Made Reasonable Efforts to Obtain Work Asserting the summary judgment evidence shows that Caplan's job search peaked in August of 2016 after he was laid off and in 74 Id. at 19. 75 Caplan Deposition, pp. 24:7-25:11, Exhibit A to FEI's MSJ, Docket Entry No. 31-1, pp. 7-8. 76 Id. at 25:12-16. 77 FEI' s Opposition to Caplan's MPSJ, Docket Entry No. 35, p. 19 (citing Exhibit Q, Docket Entry No. 35-17, pp. Caplan v. Fluor 224 ("Quality Assurance Tech, Intermountain Staffing, Houston, TX, $18$25 hourly (USD)), and Caplan v. Fluor 379 ("QA/QC Manager Fabrication, Coens Energy Solutions, Houston, TX, $75,000-$90,000 annual (USD)) . -36- July of 2017 when he filed this lawsuit, but tapered off to the point of non-existence in subsequent months, genuine issue of material reasonable exercised fact diligence exists in to make reasonable as to whether attempting substantially equivalent employment. 78 failed FEI argues that a to Caplan obtain As evidence that Caplan efforts to obtain substantially equivalent employment, FEI argues that Caplan failed to apply for the apparently equivalent positions posted by Intermountain Staffing and by Coens Energy Solutions in August and October of 2017. 79 Asserting that he has applied for numerous jobs, Caplan argues that there can be no factual dispute that he exercised reasonable diligence. 80 Because both parties have cited conflicting evidence as to whether Caplan failed to make reasonable efforts to obtain substantially equivalent employment, a genuine issue of material fact exists as to this issue. Because material fact the court exist equivalent employment, has as to concluded the that availability genuine of issues of substantially and as to whether Caplan failed to make reasonable efforts to obtain substantially equivalent employment, Caplan's motion for partial summary judgment on FEI's affirmative defense that he failed to mitigate his damages will be denied. 78 FEI's Opposition to Caplan's MPSJ, Docket Entry No. 35, p. 20. 79Id. 80 Plaintiff' s Reply in Support of Its Motion Summary Judgment, Docket Entry No. 42, pp. 1-2. -37- for Partial V. FEI FEI's Objections and Motion to Strike objects to and moves to strike Caplan's submitted in support of his response to FEI's MSJ Declaration (Docket Entry No. 34-1) arguing that the declaration contradicts Caplan's sworn deposition testimony without explanation, and contains conclusory statements for which Caplan lacks personal knowledge. 81 reasons stated in§ III.A.2(a) (2), above, concluded that ~ FEI' s objection to Declaration should be denied because the court has already 6 of should be overruled and that FEI's motion to For the Caplan's Declaration strike~ that 6 of Caplan's paragraph does not contradict without explanation Caplan's sworn deposition testimony. But for the reasons stated in§ III.A.2(c), above, already concluded that FEI's objections to ~ the court has 7 of Caplan's Declaration should be sustained, and that FEI's motion to strike ~ 7 of Caplan's Declaration should be granted because Caplan fails to present any evidence capable of establishing that his job duties or position provided him knowledge or expertise to assess FEI's staffing requirements. Because the court has been able to resolve FEI's MSJ without reference to the remaining paragraphs of Caplan's Declaration, FEI's motion to strike will be denied as moot as to all other paragraphs of Caplan's Declaration. FEI objects to and moves to strike Persad' s Declaration submitted in support of Caplan's response to FEI' s MSJ (Docket Entry No. 34-13) arguing that the declaration contains conclusory 81 FEI's Objections and Motion to Strike, Docket Entry No. 38, p. 9. -38- and assertions unsupported interpretations, hearsay. 82 the and or or self-serving contains inadmissible subjective declaration For the reasons stated in § I I I. A. 2 (c) , above, the court has already concluded that FEI's objections to~~ 4-5 of Persad's Declaration should be sustained and FEI's motion to strike those paragraphs should be granted because Caplan fails to present any evidence capable position provided of establishing him staffing requirements. knowledge that or Persad' s expertise job to duties assess or FEI' s Because the court has been able to resolve FEI's MSJ without reference to the remaining paragraphs of Persad's Declaration, FEI's motion to strike will be denied as moot as to all other paragraphs of Persad's Declaration. VI. Conclusions and Order For the reasons stated in § III, above, the court concludes that Caplan has raised genuine issues of material fact for trial on his claims for discriminatory discharge in violation of the ADA, and for retaliatory discharge in violation of the ADA and the FMLA. Accordingly, Defendant Fluor Enterprises, Inc.'s Motion for Summary Judgment (Docket Entry No. 31) is DENIED. For the reasons stated in that Caplan is not entitled IV, § to above, summary the court concludes judgment on FEI's affirmative defense based on Caplan's alleged failure to mitigate his damages. Accordingly, Plaintiff's Motion for Partial Summary Judgment (Docket Entry No. 82 28) is DENIED. Id. at 11-12. -39- For the reasons stated in §§ III .A. 2 (a) (2) ~ FEI's objection to for the reasons ~ objection to of in § III.A.2(c) to~ and IV, above, Caplan's Declaration is SUSTAINED. Motion to Strike is GRANTED as to DENIED as ~ of Persad's Declaration is SUSTAINED, to to~~ 4-5 all Accordingly, FEI's 7 of Caplan's Declaration, and DENIED AS MOOT as to For the reasons stated in§§ III.A.2(a) (2) and IV, above, FEI's objection as FEI's 6 of Caplan's Declaration, all remaining paragraphs of Caplan's Declaration. GRANTED as above, 6 of Caplan's Declaration is OVERRULED; and stated 7 and IV, to~~ 4-5 FEI's Motion to Strike is of Persad's Declaration, and is DENIED AS MOOT remaining Defendant paragraphs of Persad's Fluor Enterprises, Declaration. Inc. 's Objections to Plaintiff's Summary Judgment Evidence and Motion to Strike, Docket Entry No. 38, is GRANTED IN PART and DENIED IN PART. The court concludes that this case is appropriate mediation or a settlement conference before a Magistrate Judge. for If the parties are not able to settle this action within the next thirty (30) days, they will provide the court with the name and contact information of an agreed mediator, or a request that the court refer this case to Magistrate Judge Nancy K. Johnson for a settlement conference. SIGNED at Houston, Texas, on this the 8th day of April, 2019. SIM LAKE UNITED STATES DISTRICT JUDGE -40-

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