Tanner vs. BD LaPlace, LLC
Filing
78
ORDER and REASONS - IT IS ORDERED that the plaintiff's motion to strike is DENIED, and BD LaPlace's motion for summary judgment is hereby GRANTED. The plaintiff's claims against BD LaPlace are dismissed, as stated within document. Signed by Judge Martin L.C. Feldman on 3/27/2019. (cbs)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PAUL J. TANNER
CIVIL ACTION
v.
NO. 17-5141
BD LAPLACE, LLC
SECTION "F"
ORDER AND REASONS
Before
the
Court
is
the
defendant’s
motion
for
summary
judgment pursuant to Rule 56 and the plaintiff’s motion to strike.
For the following reasons, the motion to strike is DENIED and the
motion for summary judgment is GRANTED.
Background
Paul Tanner claims that his former employer violated the
Americans with Disabilities Act when it mandated that he undergo
a medical evaluation as a condition of continued employment; he
refused. 1
BD LaPlace, LLC is an industrial steel manufacturer based in
LaPlace, Louisiana.
BD LaPlace uses several cranes to unload,
Insofar as Mr. Tanner has failed to submit any competent evidence
to controvert the material facts outlined in the defendant’s
statement of undisputed facts, those facts are deemed admitted for
the purposes of the defendant’s motion.
See Fed. R. Civ. P.
56(c)(1); see also Local Rule 56.2.
1
1
sort, and load scrap metal for transfer, often in close proximity
to one another. Paul Tanner was employed at BD LaPlace as a crane
operator from 2006 until early March 2016, and was a member of the
United Steel Workers Union (“Union”).
In early 2016, BD LaPlace’s Human Resource Manager, Kristen
Barney, received several complaints of Tanner’s erratic workplace
behavior
and
investigation
initiated
confirmed
an
that
investigation.
coworkers
had
BD
LaPlace’s
similar
concerns
regarding Tanner’s behavior and workplace safety; the coworker
concerns included instances where Tanner prayed aloud for people
at work, threw rosary beads at a worker, told a supervisor “you’re
not my boss” in response to a request to wear a safety vest, told
a coworker he would get him arrested if he didn’t turn off his
music
and
slapped
the
coworker’s
hand
down
during
the
confrontation, and that Tanner operated his crane too close to
other cranes.
Ms. Barney met with BD LaPlace management and with Union
representatives. With the Union’s support, Ms. Barney and BD
LaPlace referred Tanner to the Employee Assistance Program (“EAP”)
to undergo a mandatory “fitness for duty evaluation” (“FFDE”), 2
The EAP, which was supported by the Union and part of the CBA,
states: “When an employee’s job performance or attendance falls
2
2
which would include a mental and physical evaluation. Tanner was
then informed of the complaints against him, that he would be
placed on paid leave pending his referral to the EAP, and that he
must submit to a mandatory FFDE to be administered by a mental
health professional.
FFDE. 3
Ultimately, Tanner refused to submit to the
BD LaPlace determined that Tanner had abandoned his job
and processed this as a voluntary resignation, effective on March
4, 2016.
In
late
April
2016,
nearly
two
months
after
Tanner’s
discharge, Tanner received a check from BD LaPlace for $1,000.
Around the same time, BD LaPlace issued ratification bonuses to
all current employees as of April 4, 2016. BD LaPlace, noting that
the
check
was
issued
by
mistake
to
Tanner
and
other
former
employees, placed a stop payment on the $1,000 check.
On September 26, 2016, Tanner filed a complaint with the Equal
Employment
Opportunity
Commission
(“EEOC”)
alleging
that
BD
below acceptable standards, the employee may then be referred to
the EAP by a supervisor or HR representative. The company will
not attempt to diagnose the problem.”
3 Tanner admits he was concerned the evaluation was a pretext to
commit him to a mental institution. Unknown to BD LaPlace at the
time, one year before it ordered the FFDE, Tanner had been
committed and placed on a three-day involuntary psychiatric hold
for an incident at a church. Tanner admits that the police
responded to the church incident, and that he made statements to
the church priest about spilling blood and also refused to leave.
3
LaPlace discriminated against him on the basis of disability and
he was terminated because he failed to submit to the FFDE. Tanner
affirms in his filing with the EEOC that he does not have a
disability, stating “I do not have a disability but employer fired
me for refusing to submit to a medical examination (both physical
and mental) without cause or concern.”
On May 1, 2017, seven months after the EEOC complaint, Tanner
applied for Social Security benefits in which he claimed that he
became disabled on March 1, 2016. In related filings with the
Social Security Administration (SSA), Tanner submits that a neck
injury, ankle injury, and tissue damage cause him pain, he stopped
working on March 1, 2016, and the reason he stopped working is due
to his medical conditions. Tanner affirmed that all information in
connection with his claim for benefits was true and he understood
that making false statements or representations was a criminal
offense. Then, on October 9, 2017, the SSA found that Tanner was,
in fact, disabled and, under its rules, backdated his disability
to February 10, 2016 – one month prior to his refusal to submit to
the FFDE.
On May 23, 2017, Tanner sued BD LaPlace alleging that forcing
him to submit to the FFDE to continue employment violated the
Americans with Disabilities Act (“ADA”). He also alleges claims
4
for retaliation and disability discrimination under the ADA and
for unpaid wages under the Louisiana Wage Payment Act.
He seeks
back pay, front pay, bonus payments, attorney’s fees, and $100,000
in emotional stress.
The defendant now moves for summary judgment and the plaintiff
moves to strike five of the defendant’s exhibits as inadmissible.
I.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as
to any material fact such that the moving party is entitled to
judgment as a matter of law. No genuine dispute of fact exists if
the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A genuine
dispute of fact exists only “if the evidence is such that a
reasonable jury could return a verdict for the non-moving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The mere argued existence of a factual dispute does not defeat
an otherwise properly supported motion. See id. In this regard,
the non-moving party must do more than simply deny the allegations
raised by the moving party. See Donaghey v. Ocean Drilling &
Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992). Rather, he
5
must come forward with competent evidence, such as affidavits or
depositions, to buttress his claims. Id. Hearsay evidence and
unsworn documents that cannot be presented in a form that would be
admissible
in
evidence
at
trial
do
not
qualify
as
competent
opposing evidence. Martin v. John W. Stone Oil Distrib., Inc., 819
F.2d 547, 549 (5th Cir. 1987); Fed. R. Civ. P. 56(c)(2). “[T]he
nonmoving party cannot defeat summary judgment with conclusory
allegations, unsubstantiated assertions, or only a scintilla of
evidence.”
Hathaway
v.
Bazany,
507
F.3d
312,
319
(5th
Cir.
2007)(internal quotation marks and citation omitted). Ultimately,
“[i]f the evidence is merely colorable ... or is not significantly
probative,” summary judgment is appropriate. Id. at 249 (citations
omitted);
King
v.
(“Unauthenticated
Dogan,
documents
31
F.3d
are
344,
improper
346
as
(5th
Cir.
summary
1994)
judgment
evidence.”).
Summary judgment is also proper if the party opposing the
motion fails to establish an essential element of his case. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In deciding
whether a fact issue exists, courts must view the facts and draw
reasonable inferences in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007). Although
the Court must “resolve factual controversies in favor of the
6
nonmoving party,” it must do so “only where there is an actual
controversy, that is, when both parties have submitted evidence of
contradictory facts.” Antoine v. First Student, Inc., 713 F.3d
824, 830 (5th Cir. 2013)(internal quotation marks and citation
omitted).
In resolving a motion for summary judgment, the Court "may
only
consider
admissible
evidence."
Coleman
v.
Jason
Pharmaceuticals, 540 Fed. Appx. 302, 306 (5th Cir. 2013)(citing
Fed. R. Civ. P. 56(c)(2) and Mersch v. City of Dallas, 207 F.3d
732, 734-35 (5th Cir. 2000)). Federal Rule of Evidence 56(c)(2)
provides that “[a] party may object that the material cited to
support or dispute a fact cannot be presented in a form that would
be admissible in evidence.”
Affidavits and declarations used to
support a motion must only “be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the
affiant
or
declarant
is
competent
to
testify
on
the
matters
stated.” Fed. R. Civ. P. 56(c)(4).
II.
Tanner seeks to narrow the scope of the summary judgment
record, urging the Court to strike the following exhibits: 1, the
Declaration
of
Kristin
Barney,
BD
LaPlace’s
Human
Resource
Manager; 1A, Criteria for Crane Operator; 1B, contemporaneous
7
notes of BD LaPlace’s investigation; 1D, EAP application; and, 1E,
BD LaPlace’s and the Union’s Collective Bargaining Agreement.
Tanner argues that these exhibits contain inadmissible hearsay or
that they lack authentication and, therefore, are not competent
evidence for purposes of summary judgment.
The defendant counters
that Tanner’s generic and conclusory challenge is improper and
that, even if parsed, each item of evidence is admissible and
authenticated.
The Court agrees.
Tanner characterizes Exhibit 1 as hearsay, yet declines to
specify which paragraphs constitute hearsay, nor explain why. The
generic intonation of the Rules of Evidence coupled with the words
“hearsay” and “not authenticated” offer mere conclusory challenges
to evidence.
It is not this Court’s duty to parse and infer what
the plaintiff intends to strike. See Hoffman v. Bailey, 257 F.
Supp. 3d 801, 825 (E.D. La. 2017). The Court declines to examine
each paragraph of Ms. Barney’s declaration to determine the merit,
if any, of Tanner’s wholesale objection.
Nor will the Court
belabor itself by making arguments on Mr. Tanner’s behalf when his
counsel has failed even to suggest that the evidence he purports
to challenge cannot be presented in a form that would be admissible
in evidence consistent with Rule 56(c)(2).
strike Exhibit 1 has no merit.
8
Tanner’s motion to
Tanner’s objections to the other exhibits are equally vague
and unsupported.
Tanner asserts that Exhibits 1A, 1B, 1D, and 1E
lack necessary information that would show that the exhibits apply
to Tanner’s employment. Under Federal Rule of Evidence 803(6),
records of a regularly conducted activity are exceptions to the
rule against hearsay if:
(a)the record was made at or near the time by — or from
information transmitted by — someone with knowledge;
(b) the record was kept in the course of a regularly conducted
activity of a business, organization, occupation, or calling,
whether or not for profit;
(c) making the record was a regular practice of that activity;
(d) all these conditions are shown by the testimony of the
custodian or another qualified witness, or by a certification
that complies with Rule 902(11) or (12) or with a statute
permitting certification; and
(e) the opponent does not show that the source of information
or the method or circumstances of preparation indicate a lack
of trustworthiness.
Here, Ms. Barney stated that she is “familiar with and [is]
a custodian of the records of regularly conducted activity of BD
LaPlace with respect to personnel and payroll matters, including
but
not
limited
to,
personnel
files,
job
duties,
BD
LaPlace
policies and procedures, its Collective Bargaining Agreement, and
wage a bonus records.”
The Court finds that the requirements of
Rule 803(6) are met and notes that Tanner fails to provide a
specific
showing
that
the
evidence
indicates
a
lack
of
trustworthiness or otherwise cannot be presented in a form that
9
would be admissible in evidence. 4 The plaintiff’s motion to strike
is without merit.
The Court now turns to the defendant’s motion
for summary judgment.
III.
Tanner alleges violations of the ADA including retaliation
and disability discrimination, as well as a violation of the
Louisiana Wage Payment Act (“LWPA”) for unpaid wages.
each
of
Tanner’s
ADA
claims
are
anchored
to
BD
Notably,
LaPlace’s
requirement that he submit to a medical examination as a condition
of continued employment.
The defendant seeks summary judgment in
its favor on each claim.
A.
“The ADA prohibits an employer from discriminating against a
‘qualified individual with a disability on the basis of that
disability.’”
(5th
Cir.
See E.E.O.C. v. LHC Grp., Inc., 773 F.3d 688, 694
2014)(citation
omitted);
see
also
42
U.S.C.
§
Insofar as Tanner disputes the admissibility of Barney’s
reference to coworker complaints about Tanner’s erratic behavior,
BD LaPlace submits that this is not hearsay (because coworker
statements are not being used to prove the truth of the matter
asserted), Barney’s impressions of what was reported to her are
present-sense impression exceptions under Rule 803(3), and Tanner
admitted to most of the events underlying the coworker complaints.
Again, this being supported by the record and the Federal Rules of
Evidence, the Court agrees.
10
4
12112(a)(“No covered entity shall discriminate against a qualified
individual on the basis of disability in regard to...the discharge
of employees,...and other terms, conditions, and privileges of
employment.”). Title 42, U.S.C. § 12112(d)(1) provides that “[t]he
prohibition
against
examinations
and
discrimination...shall
inquiries.”
Subsection
include
medical
(d)(4)(A)
governs
prohibited examinations and confers on employers the right to
conduct necessary medical exams to ensure workplace safety:
A covered entity shall not require a medical examination and
shall not make inquiries of an employee as to whether such
employee is an individual with a disability or as to the
nature or severity of the disability, unless such examination
or inquiry is shown to be job-related and consistent with
business necessity.
In other words, medical exams are expressly permitted by the ADA
and implementing regulations when job-related. Id.; 29 C.F.R.
1630.14(c).
consistent
As to whether an examination is “job-related and
with
business
necessity,”
the
EEOC
provides
this
guidance:
[a] medical examination of an employee may be “job related
and consistent with business necessity” when an employer “has
a reasonable belief, based on objective evidence, that: (1)
an employee’s ability to perform essential job functions will
be impaired by a medical condition; or (2) an employee will
pose a direct threat due to a medical condition.”
11
Enforcement Guidance: Disability-Related Inquiries and Medical
Examinations of Employees Under the Americans with Disabilities
Act,
https://www.eeoc.gov/policy/docs/guidance-inquiries.html
(last visited March 25, 2019).
The employer bears the burden of
demonstrating business necessity.
Brownfield v. City of Yakima,
612 F.3d 1140, 1146 (9th Cir. 2010)(citing Thomas v. Corwin, 483
F.3d 516, 527 (8th Cir. 2007)).
“When a plaintiff can offer only circumstantial evidence to
prove a violation of the ADA, this court applies the McDonnell
Douglas
burden-shifting
framework.”
Burton
v.
Freescale
Semiconductor, Inc., 798 F.3d 222, 227 (5th Cir. 2015)(citation
omitted).
Under this framework, the plaintiff must first make a
prima facie showing of disability discrimination.
Id.
If this
showing is made, a presumption of discrimination arises, and the
employer must “articulate a legitimate non-discriminatory reason
for the adverse employment action.”
Id.
The burden then shifts
to the plaintiff to show that the articulated reason is a pretext
for discrimination.
Id.
To establish a prima facie case of discrimination under the
ADA, the plaintiff must prove: (1) that he has a disability or was
regarded as disabled; (2) that he was qualified for the job; and
(3) that he was subject to an adverse employment decision on
12
account of his disability.
Cannon v. Jacobs Field Servs. N. Am.,
Inc., 813 F.3d 586, 590 (5th Cir. 2016). If he makes that showing,
a presumption of discrimination arises, and the employer must
“articulate a legitimate non-discriminatory reason for the adverse
employment action.” E.E.O.C. v. Chevron Phillips Chem. Co., LP,
570 F.3d 606, 615 (5th Cir. 2009).
The burden then shifts to the
plaintiff to produce evidence from which a jury could conclude
that the employer's articulated reason is pretextual. See id.
To
prevail on a perceived disability claim, a plaintiff must show
that he “has been subjected to an action prohibited under [the
ADA]
because
of
an
actual
or
perceived
physical
or
mental
impairment whether or not the impairment limits or is perceived to
limit a major life activity.”
Burton v. Freescale Semiconductor,
Inc., 798 F.3d 222, 230 (5th Cir. 2015)(quoting 42 U.S.C. §
12102(3)(A)).
B.
BD LaPlace seeks judgment as a matter of law dismissing
Tanner’s claim that it violated the ADA when it mandated that he
submit to the FFDE.
BD LaPlace submits that mandating the medical
examination was expressly permitted by the ADA because it was jobrelated and consistent with business necessity. Tanner responds
13
that the ADA protects employees from adverse employment actions
stemming from their refusal to submit to medical inquiries. Tanner
further contends that BD LaPlace had no reasonable concerns about
his ability to perform his job. The Court disagrees; Tanner wholly
fails to offer any evidence to dispute BD LaPlace’s submission.
Tanner was employed as a crane operator, a safety-sensitive
position.
The position requires communication skills, given that
cranes are operated in close proximity to other cranes. BD LaPlace
Human Resources Manager, Ms. Barney, received several complaints
from coworkers indicating that Tanner was behaving erratically.
Ms. Barney noted that Tanner’s coworkers were nervous and anxious
about working with him.
The record shows that complaints were
lodged (and Tanner himself admitted) that he would pray aloud while
at work; there were also complaints regarding instances of physical
confrontation, including an instance where he tossed rosary beads
towards a coworker and slapped another’s hand down.
Tanner also
defied safety protocols when he refused to wear a safety vest, and
one coworker informed HR that Tanner had operated his crane too
close to other cranes in the yard. 5
On these facts, BD LaPlace
Although BD LaPlace did not have knowledge of this at the time,
Tanner himself acknowledges that, not long before his termination,
he had been involuntarily committed for a mental health evaluation
14
5
had legitimate reasons to question Tanner’s capacity to perform
his crane operating duties and to take proactive steps to ensure
workplace safety.
Tanner fails to offer any evidence that would
place these record facts in dispute, or otherwise create a triable
issue as to whether BD LaPlace’s decision to refer him for a
medical examination was job-related and a business necessity.
The record shows that Tanner’s referral to the EAP and FFDE
was not a unilateral decision made by Ms. Barney, but, rather, was
the course of action taken after an investigation into several
complaints followed by discussions informed by Tanner’s Union
representative.
Both BD LaPlace and the Union, when taking into
account safety concerns presented by Tanner’s reported conduct,
concluded that the FFDE was proper.
reports
by
coworkers
regarding
Based on uncontroverted
potential
safety
threats,
BD
LaPlace could have reasonably believed that a medical examination
was
job-related
and
consistent
with
business
necessity.
See
Brownfield, 612 F.3d at 1146.
Tanner fails to offer any evidence that would controvert BD
LaPlace’s
submission.
In
argument,
Tanner
contends
that
he
submitted a medical form to BD LaPlace in which he stated that he
after an incident where he made threats of spilling blood at a
local church.
15
was “behaving appropriately.”
Tanner, however, does not present
any form or document in support of this position. 6
The Court thus
finds no genuine factual dispute in the record that BD LaPlace’s
decision to refer Tanner to the EAP and mandating that he submit
to the FFDE was reasonable under the ADA; BD LaPlace is entitled
to judgment as a matter of law dismissing Tanner’s claim that BD
LaPlace violated the ADA by requiring that he submit to a medical
examination as a condition of continued employment.
C.
Insofar as Tanner claims that he was retaliated against in
violation of the ADA for failing to submit to the FFDE, BD LaPlace
responds that Tanner failed to exhaust his administrative remedies
by not alleging or describing retaliation in his EEOC Charge and,
therefore, his claim must be dismissed. The Court agrees.
“[T]he filing of a charge of discrimination with the EEOC is
a condition precedent to the bringing of a civil action under Title
VII.” Sanchez v. Standard Brands, Inc., 431 F.2d 455, 460 (5th
Cir. 1970). A district court may properly dismiss a retaliation
claim for failure to reference retaliation on the EEOC Charge. See
Even if such form were attached, the Court notes that the form
was not exchanged as part of the discovery process and has not
been authenticated.
16
6
Teffera v. N. Texas Tollway Auth., 121 F. App'x 18, 21 (5th Cir.
2004).
Given that Tanner did not allege or describe retaliation in
his EEOC charge, nor did he check the box for retaliation on either
the EEOC Intake Form nor the Charge Form, the Court finds that
Tanner did not exhaust his administrative remedies with the EEOC
on his retaliation claim. 7
Additionally, Tanner has apparently
abandoned his ADA retaliation claim by not addressing it in his
opposition papers.
For these reasons, Tanner’s retaliation claim
must be dismissed.
D.
Tanner claims that BD LaPlace discriminated against him when
it perceived him as disabled by placing him on leave pending the
Even if Tanner exhausted his administrative remedies, he would
need to show that (1) he participated in an activity protected
under the statute; (2) his employer took an adverse employment
action against him; and (3) a causal connection exists between the
protected activity and the adverse action.
McCoy v. City of
Shreveport, 492 F.3d 551, 556–57 (5th Cir. 2007). Here, Tanner
contends that his refusal to submit to the FFDE is a protected
activity; however, as the Court has already noted, an employer may
order a medical evaluation if job-related and consistent with
business necessity. Given that the Court has already determined
that the summary judgment evidence supports BD LaPlace’s
submission that it acted reasonably within its rights under 42
U.S.C. § 12112(d)(4) (and the EEOC guidance) to require a medical
examination to ensure workplace safety -- even if Tanner had
exhausted his retaliation claim -- he would not be able to show
that he had engaged in protected activity on this record.
17
7
medical examination and then fired him when he failed to submit to
the FFDE.
Insofar as this claim is for ADA discrimination, BD
LaPlace seeks summary judgment dismissing it, contending that
Tanner is judicially estopped from asserting a claim for disability
discrimination, and that he cannot prove his prima facie case
because an EAP referral for a mandatory FFDE is not sufficient to
prove that an employer regards the employee as disabled. The Court
agrees.
The
equitable
doctrine
of
judicial
estoppel,
which
is
designed to reduce the risk of inconsistent court determinations,
“prevents a party from asserting a position in a legal proceeding
that is contrary to a position previously taken in the same or
earlier proceeding.”
See Hopkins v. Cornerstone America, 545 F.3d
338, 347 (5th Cir. 2008)(citation omitted).
The Fifth Circuit has
recognized these three requirements: (1) the plaintiff’s position
must be “clearly inconsistent” with a previous position; (2) the
court must have accepted the previous position; and (3) the nondisclosure
must
not
have
been
inadvertent.”
In
re
Superior
Crewboats, Inc., 374 F.3d 330, 335 (5th Cir. 2004)(citations
omitted).
Administrative proceedings are prior legal proceedings
under the doctrine.
See Simon v. Safelite Glass Corp., 128 F.3d
68, 72 (2d Cir. 1997)(holding that employee’s statements, under
18
penalty of perjury, to Social Security Administration, that he was
“unable to work” judicially estopped him from claiming that he was
qualified to perform duties required for his position).
“[P]ursuit,
and
receipt
of
[social
security
disability]
benefits does not automatically estop the recipient from pursuing
an ADA claim.”
Cleveland v. Policy Management Sys. Corp., 526
U.S. 795, 797 (1999).
Even so, “an ADA plaintiff cannot simply
ignore [his disability] contention that []he was too disabled to
work.... [He] must explain why that [disability] contention is
consistent with [his] ADA claim that []he could ‘perform the
essential
functions’
of
h[is]
reasonable accommodation.’”
Id.
previous
job,
at
least
with
Unless the plaintiff offers a
“sufficient explanation” for the contradiction, “a plaintiff’s
sworn assertion in an application for disability benefits that
[]he is ‘unable to work’ will appear to negate an essential element
of h[is] ADA case.”
Id. at 806.
Tanner’s application to the SSA stated that he is “disabled”
and the he “became unable to work due to his disabling condition
on February 10, 2016.” After reviewing this and voluminous medical
records, the SSA determined that Tanner had been totally disabled
since February 10, 2016.
The defendant submits that Tanner’s
assertion that he is qualified to perform the essential functions
19
of his position is wholly inconsistent with his sworn statement to
the SSA.
The defendant also submits that Tanner himself has
admitted in his deposition that he cannot perform the essential
functions of crane operator.
Tanner
has
submitted
This is undisputed.
no
evidence
and
made
no
effort
to
demonstrate that he was a qualified individual with a disability.
Nor has he offered any explanation to reconcile the inconsistencies
between his SSA application (in which he claims total disability)
and his ADA claim (in which he claims that he is and was qualified
to perform as a crane operator but that his employer wrongfully
terminated him after evidently regarding him as disabled).
fact,
the
only
explanation
offered
in
Tanner’s
In
deposition
testimony is an admission that he is (and was) unable to perform
the
essential
functions
of
crane
operator.
Whether
he
is
judicially estopped from making out his ADA claim due to his
failure
to
adequately
explain
his
inconsistent
positions,
or
whether he has failed to submit any evidence on an essential
element
of
his
claim
(i.e.,
he
is
qualified
to
perform
the
essential functions of his job, with or without accommodation),
his ADA discrimination claim cannot withstand summary judgment.
See Cleveland, 526 U.S. at 805-06 (holding that “an ADA plaintiff
cannot simply ignore the apparent contradiction that arises out of
20
the earlier SSDI total disability claim. Rather, []he must proffer
a sufficient explanation.”).
Again,
Tanner’s
singular
argument
in
support
of
his
disability discrimination claim is that BD LaPlace mandated that
he undergo FFDE and, the argument goes, that fact alone proves
that BD LaPlace regarded Tanner as disabled. 8
But Tanner fails to
offer any evidence or legal authority in support of his argument.
Simply put, an employer’s perception that health problems may
adversely affect an employee’s job performance or workplace safety
is not tantamount to regarding the employee as disabled.
Indeed,
the case literature demonstrates an appreciation of the EEOC
guidance in this realm, which permits employers to inquire into
behavior that may compromise workplace safety.
For this reason,
an EAP referral to a mandatory FFDE is insufficient to prove that
an employer regards the employee as disabled.
See, e.g., Krocka
v. City of Chicago, 203 F.3d 507, 515 (7th Cir. 2000)(fitness for
Tanner does not attempt to controvert any of the defendant’s
evidence other than through repeated conclusory statements that
Tanner must have been perceived as disabled if he was terminated
for failing to submit to the FFDE. Nowhere in the record does it
show, nor does Tanner submit, that BD LaPlace regarded him as
disabled. Even if Tanner’s proffered medical records were properly
authenticated, Tanner fails to demonstrate how they contribute to
BD LaPlace’s perception of him as disabled or how he was
discriminated on the basis of that perceived disability.
21
8
duty evaluations and other steps taken by employer to reassure
itself that employee is fit for duty where there is a concern about
employee’s ability to perform particular job are not proof that
employer regarded employee as disabled); Sullivan v. River Valley
Sch. Dist., 197 F.3d 804, 808 (6th Cir. 1999), cert. denied, 530
U.S. 1262 (2000)(request that employee undergo examination to
determine fitness for job does not prove that employer regarded
employee as disabled); Cody v. CIGNA Healthcare of St. Louis, Inc.,
139 F.3d 595, 599 (8th Cir. 1998)(“A request for [a mental]
evaluation is not equivalent to treatment of the employee as though
she were substantially impaired.
Employers need to be able to use
reasonable means to ascertain the cause of troubling behavior
without exposing themselves to ADA claims[.]”).
Just as he fails to offer evidence that would support a
finding that BD LaPlace regarded him as disabled, Tanner likewise
fails to even attempt to reconcile the inconsistencies in his SSA
disability application and his ADA lawsuit.
Insofar as Tanner’s
ADA discrimination claim is distinct from his claim that BD LaPlace
violated
the
ADA
in
mandating
that
he
submit
to
a
medical
examination, BD LaPlace is entitled to judgment as a matter of law
dismissing this claim.
22
IV.
Tanner, lastly, seeks reimbursement on a prorated basis for
the $1,000 check he was prevented from cashing when BD LaPlace
stopped payment.
He contends that because he worked 63 of the 90
days of the first quarter of 2016, he is entitled to $700 (of the
$1,000 bonus) and that refusal to pay that amount violates the
LWPA. The defendant counters that the plaintiff was paid all wages
due from BD LaPlace; it further submits that that the bonus check
was issued by mistake, there is no written agreement between Tanner
and BD LaPlace to issue this bonus, and Tanner himself has admitted
that he is unaware why he received the check or the purpose of the
bonus.
Because Tanner has not shown contractual entitlement to
the bonus, his claim is without merit.
The LWPA imposes liability on an employer that fails to timely
pay wages owed to an employee after he is terminated.
23:631(A)(1)(a).
La.R.S. §
Incentive-based bonuses are considered wages
under La.R.S. § 23:634, which provides that “...employees shall be
entitled to the wages actually earned up to the time of their
discharge or resignation.”
See Pender v. Power Structures, Inc.,
359 So. 2d 1321, 1323 (La. Ct. App. 4 Cir. 1978).9
Whether a bonus
In Pender, the employer’s bonus plan provided for quarterly
bonuses payable from a calculable portion of the profits for the
23
9
constitutes an “amount then due” is a mixed question of law and
fact.
2016
See Thorne v. Bard Peripheral Vascular, Inc., No. 16-262,
WL
3746148,
at
J.)(citations omitted).
employment
conditions,
*7
(E.D.
La.
July
13,
2016)(Feldman,
“When Louisiana courts uphold continued
it
is
generally
because
some
part
of
performance on the part of the employee, in addition to mere
continued employment, is still due.”
Id.
To be sure, before the Court determines whether a continued
employment condition is viable, the Court must consult the written
employment agreement to determine whether an employer agreed to
pay a bonus and whether the bonus is conditioned upon continued
employment.
Thus, to prevail on a wage claim seeking an unpaid
bonus, the plaintiff must first prove that there was a written
agreement that entitles him to the bonus and demonstrate that the
bonus was not paid.
See Acosta v. Boudreau & Thibodeau's Cajun
Cookin' Inc., No. 16-14897, 2017 WL 3521595, at *3 (E.D. La. Aug.
bonus period, payable within 30 days of the end of the bonus period
and limited to a percentage of the employee’s salary. The state
court of appeal held that the plan’s rule that employees must be
employed at the time of payment was against public policy. “[T]he
requirement of continued service in this particular bonus plan is
unenforceable as against public policy and plaintiffs are
accordingly entitled to collect the bonuses which constituted part
of the compensation promised to them for services performed during
the bonus period.” Id. (emphasis added).
24
16, 2017).
Here, there is no written agreement in the record
demonstrating that Tanner is entitled to (any portion of) the
$1,000 check that BD LaPlace issued, then cancelled. 10
Because the
plaintiff has failed to offer any evidence on an essential element
of his wage claim, BD LaPlace is entitled to judgment as a matter
of law dismissing the LWPA claim.
Accordingly, IT IS ORDERED: that the plaintiff’s motion to
strike is DENIED, and BD LaPlace’s motion for summary judgment is
hereby GRANTED. The plaintiff’s claims against BD LaPlace are
dismissed.
New Orleans, Louisiana, March __, 2019
_____________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
In his deposition, Tanner admits that there was no employment
agreement: he says he does not know the purpose of the bonus or
if he is entitled to it under his union agreement.
BD LaPlace
submits that the bonus was intended to compensate all current
employees for ratifying the CBA, which was ratified on April 4,
2016 -- a month after BD LaPlace processed Tanner’s discharge as
a voluntary resignation for job abandonment, effective March 4,
2016.
25
10
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