Brown v. Transdev Services, Inc.

Filing 33

ORDER AND REASONS GRANTING 21 Motion for Summary Judgment; DISMISSING as moot 26 Motion in Limine, as set forth in document. Signed by Judge Ivan L.R. Lemelle on 02/13/2019. (am)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DARIUS BROWN

CIVIL ACTION

VERSUS

NO. 18-2490

TRANSDEV SERVICES, INC.

SECTION "B"(4)
ORDER AND REASONS

Defendant Transdev Services, Inc. filed a motion for summary
judgment

in

its

favor

and

against

plaintiff.

Rec.

Doc.

21.

Plaintiff filed a response in opposition. Rec. Doc. 27. Defendant
then sought, and was granted, leave to file a reply. Rec. Doc. 30.
For the reasons discussed below,
IT IS ORDERED that defendant’s motion for summary judgment is
GRANTED.
IT IS FURTHER ORDERED that defendant’s motion in limine (Rec.
Doc. 26) is hereby DISMISSED as moot.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff Darius Brown filed a complaint against defendant
Transdev

Services

Inc

for

violations

of

the

Americans

with

Disability Act (ADA). Rec. Doc. 1. Plaintiff alleges that defendant
violated the ADA by subjecting him to adverse employment actions
on account of HIV-positive status, leading to his termination.
Plaintiff’s allegations are described in detail in a previous Order
and Reasons issued by this Court and are incorporated by reference
here. Rec. Doc. 17.

1

Defendant filed the instant motion for summary judgment,
asserting that plaintiff’s case is based on pure speculation and
that

he

has

no

evidence

in

support

of

the

claim

that

his

termination was on the basis of his HIV-positive status. Rec. Doc.
21. Defendant asserts that there is no evidence that anyone at
Transdev knew plaintiff had HIV, and therefore defendant could not
have discriminated against plaintiff on the basis of his HIVstatus. Id. Defendant states that plaintiff has not demonstrated
a genuine dispute as to the fact that plaintiff had excessive
absences during his probationary period and was involved in a
preventable

accident,

termination.

Rec.

which

Doc.

28.

were

the

Plaintiff

actual
filed

basis
his

for

response

his
in

opposition asserting that he has provided sufficient evidence to
demonstrate that there remain genuine issues of material fact as
to whether he was capable of complying with Transdev’s attendance
policy and whether the accident in which he was involved was
actually preventable. Rec. Doc. 27. Plaintiff states that Transdev
had notice of his HIV-positive status and
following

Transdev’s

receipt

of

this

he was terminated

information,

therefore

plaintiff argues that summary judgment is not proper. Id.
THE PARTIES’ CONTENTIONS
Defendant argues that plaintiff cannot establish a disparate
treatment claim or a failure to accommodate claim pursuant to the
ADA.

Rec.

Doc.

21.

Defendant

asserts
2

that

plaintiff

cannot

establish a prima facie case of disparate treatment because he
could not perform the essential function of maintaining regular
attendance and therefore was not qualified for his job. Rec. Doc.
21-2 at 7. Defendant also asserts that plaintiff cannot show his
termination was because of his disability as he has no evidence
that any particular person, much less the managers involved in the
decision to terminate him, knew that he had HIV. Id. at 9.
Defendant notes that plaintiff himself has conceded that he never
disclosed his HIV status to any of his supervisors or anyone else
with authority over his employment. Rec. Doc. 28-1 at 3. Defendant
argues that there is no evidence that the unnamed depot clerk to
whom plaintiff alleges he provided medical documents to request
time off read the documentation past the point of determining the
proposed dates of absence, noticed the reference to HIV, and then
informed the members of management who made the decision to
terminate plaintiff. Id. at 4. Even if the Court finds that
plaintiff can establish a prima facie case of discrimination,
defendant asserts that it can fulfill its burden of providing a
legitimate non-discriminatory reason for terminating plaintiff,
namely that plaintiff was an at-will probationary employee who had
accumulated excessive absences and was involved in a preventable
accident. Rec. Doc. 21-1 at 9-10. Defendant avers that plaintiff
cannot offer any evidence to show that Transdev’s reason for his
termination was pretext for discrimination and therefore cannot
3

survive summary judgment. Id. at 10-11. Defendant also argues that
to the extent plaintiff’s claim is actually based on a failure to
accommodate theory, that claim fails as well because plaintiff has
admitted that he did not seek or need any accommodation while
employed by defendant. Id. at 11. Defendant asserts that it had no
notice of plaintiff’s disability and therefore may not be held
accountable for failing to provide a reasonable accommodation when
it was not aware that any accommodation was needed, and plaintiff
did not request any. Id. at 12-13.
Plaintiff asserts that summary judgment is not proper as he
has provided sufficient evidence to establish a case for disparate
treatment based on his disability. Rec. Doc. 27. Plaintiff states
that he has met his burden of demonstrating a prima facie case of
discrimination. Id. at 3. Plaintiff asserts that there is a genuine
issue as to his absences and whether the accident he was involved
in was actually preventable. Id. at 4-6. Plaintiff claims that he
did everything he was instructed to do in order to prevent the
accident and avers that this Court should take all inferences in
his

favor.

Id.

at

4.

Transdev’s

policy

requires

employee

termination in the event of five total occurrences. Id. at 5.
Plaintiff avers that he complied with Transdev’s attendance policy
by informing Transdev in advance of the dates he would not be
working due to medical appointments and a scheduled court date.
Id. Plaintiff also argues that there is a genuine issue of material
4

fact as to whether he was terminated as a result of his disability
given that he has testified that he gave defendant documentation
informing it of his HIV-positive status in the form of medical
records and was terminated thereafter. Id. at 6. Furthermore,
plaintiff states that there is a genuine dispute as to whether his
termination was legitimate, and whether the rationale given by
defendant for his termination is pretextual. Id. at 7-9. Plaintiff
asserts that defendant was on notice of his HIV-positive status
when he provided his medical records on May 10, 2016, which clearly
stated his HIV-positive status. Id. at 9. Plaintiff states that
defendant could have reasonably accommodated his requests to be
off work for particular days to undergo the medical procedure. Id.
LAW AND ANALYSIS
Summary

judgment

is

appropriate

when

“the

pleadings,

depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.” Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). A genuine
issue of material fact exists if the evidence would allow a
reasonable jury to return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
When

the

movant

bears

the

burden

of

proof,

it

must

“demonstrate the absence of a genuine issue of material fact” using
5

competent summary judgment evidence. Celotex, 477 U.S. at 323. But
“where the non-movant bears the burden of proof at trial, the
movant may merely point to an absence of evidence.” Lindsey v.
Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994). When the
movant meets its burden, the burden shifts to the non-movant, who
must show by “competent summary judgment evidence” that there is
a genuine issue of material fact. See Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Lindsey, 16
F.3d at 618.
A. Plaintiff does not establish a disparate treatment claim
Plaintiff does not demonstrate a genuine dispute of material
fact as to his disparate treatment claim. In a disparate treatment
case,

a

plaintiff

must

establish

a

prima

facie

case

of

discrimination by proving that: 1) he has a disability; 2) he was
qualified for the job; and 3) he was subject to an adverse
employment decision on account of his disability. See E.E.O.C. v.
LHC Grp., Inc., 773 F.3d 688, 694 (5th Cir. 2014). If a plaintiff
establishes a prima facie case of discrimination, the burden then
shifts

to

the

defendant

to

“articulate

a

legitimate,

nondiscriminatory reason” for the adverse employment decision. Id.
at 694. If the defendant satisfies this burden, “the burden shifts
back to the [plaintiff] to show that [the defendant’s] proffered
reason is pretextual.” Id.

6

Plaintiff

does

not

establish

a

prima

facie

case

of

discrimination. Each of the above-mentioned factors to prove a
prima facie case of discrimination will be considered in turn.
Neither party disputes that plaintiff’s HIV status qualifies as a
disability and plaintiff satisfies the first step of proving a
prima facie case of discrimination. See Bragdon v. Abbott, 524
U.S. 624 (1998) (holding that HIV infection is a “disability” under
the ADA).
Plaintiff provides a genuine dispute of material fact as to
whether he was qualified for the job. Defendant asserts that
plaintiff was not qualified for his job because regular attendance
is an essential function of his job and he did not have regular
attendance.

Plaintiff

disputes

this

characterization

of

his

absences, arguing that he provided advance notice of his absences
to Transdev, as required by the policy. Precedent in this circuit
holds that regular attendance is a necessary qualification for
most jobs. See Smith v. Lattimore Materials Co., 287 F.Supp.2d
667, 672 (E.D.Tex.), aff'd, 77 Fed.Appx. 729 (5th Cir.2003).
However, whether plaintiff’s attendance was adequate is measured
by Transdev’s own attendance policy, which allows for up to five
occurrences before termination. See Carmona v. Sw. Airlines Co.,
604

F.3d

848,

860

(5th

Cir.

2010).

Mere

absences

alone,

as

suggested by defendant in its reply, are not sufficient to make
plaintiff unqualified for his job when defendant’s policy makes an
7

allowance for a certain number of absences. Transdev’s policy
allows

for

an

employee

to

accumulate

up

to

five

chargeable

occurrences prior to termination, which defendants aver plaintiff
accumulated. Rec. Doc. 21-3 at 3. If this is true, then plaintiff
did not have regular attendance and was therefore not qualified
for the job. However, plaintiff claims that he did not accumulate
five chargeable occurrences, as defined by Transdev’s attendance
policy, because he provided advance notice of his absences and
they should not have been tallied as chargeable absences. At this
stage, it is not for the Court to weigh the evidence and determine
which party is correct. Rather, it is sufficient to note that
plaintiff has provided enough evidence, in his deposition and by
providing his court slip and medical records, to create a genuine
dispute

of

material

fact

as

to

whether

plaintiff

had

five

chargeable absences. A jury could reasonably find that plaintiff
had not accumulated five chargeable absences and therefore had
regular attendance, making him qualified for his job. Plaintiff
has met his burden at the summary judgment stage for the second
prong.
Plaintiff has not demonstrated a genuine dispute as to whether
he was subject to an adverse employment decision on account of his
disability. Plaintiff provides no evidence to support his claim
that defendants’ decision to terminate him was on account of his
HIV-positive status. Because plaintiff bears the burden at trial,
8

defendant “may merely point to an absence of evidence.” See Lindsey
at 618. The Fifth Circuit has held that a “nonmovant must go beyond
the pleadings and designate specific facts that prove that a
genuine issue of material fact exists.” Peterson v. Brookshire
Grocery Co., 2018 WL 5920410, at 2 (5th Cir. 2018) (citing Hathaway
v. Bazany, 507 F.3d 312 (5th Cir. 2007)). However, plaintiff
“cannot

defeat

summary

judgment

with

conclusory

allegations,

unsupported assertions, or presentation of only a scintilla of
evidence.” Peterson at 2. Plaintiff provides no evidence in support
of his assertion that he was terminated because of his HIV-positive
status. Plaintiff did not inform defendant of his disability when
he was hired or when he underwent a medical examination report for
commercial driver fitness determination. Rec. Doc. 21-5 at 93-95.
Plaintiff speculates that although the first doctor’s note that he
provided defendant did not identify plaintiff as HIV-positive,
defendant could still have learned of his disability by “googling”
the name of medications listed. Rec. Doc. 21-5 at 32. The only
other piece of evidence plaintiff proffers in support of his
assertion that defendant may have learned of his disability is a
medical record regarding his May 10, 2016 medical procedure, which
references his HIV. Rec. Doc. 27-5. Plaintiff states that he
provided this document to an unnamed depot clerk prior to his
absence on May 10, 2016, although plaintiff does not provide
evidence of this other than to mention that there could possibly
9

be

surveillance

evidence

and

footage.

designates

Nevertheless,
no

specific

plaintiff

facts

that

provides
indicate

no
his

termination was connected to defendant’s alleged receipt of this
information. Defendant stated that plaintiff’s termination was
based on his involvement in a preventable accident and his charged
absences,

including

a

charged

absence

that

occurred

before

plaintiff provided the medical record to an unnamed employee
referencing his HIV-positive status to defendant. Plaintiff also
admitted in his deposition that he does not believe the individuals
responsible for designating his accident as preventable did so
because of his disability. Rec. Doc. 21-5 at 24. In fact, during
his deposition plaintiff stated multiple times that he does not
have evidence that any particular person at Transdev even knew of
his HIV. He specifically stated he “[doesn’t] have information or
evidence that anyone in there [Transdev] to this date knows that
I have it [HIV].” Rec. Doc. 21-5 at 44. Plaintiff stated that
nobody ever brought up that he had HIV at his employment or
harassed him on account of his HIV. Rec. Doc. 21-5 at 35, 74.
Therefore, there is no material evidence in the record that would
allow a reasonable jury to conclude that defendant terminated
plaintiff
conclusory

on

account

allegations

of

his

are

HIV-positive

not

sufficient

status.
to

Plaintiff’s

survive

summary

judgment. Additionally, plaintiff’s argument about whether the
accident

he

was

involved

in

was
10

actually

preventable,

as

categorized by defendant, is not relevant to the present analysis.
Plaintiff does not allege that defendant’s allegedly incorrect
designation of the accident as ‘preventable’ was made because of
his HIV-positive status. Therefore, it is not relevant to the
issues presented in this case and determining whether plaintiff
has provided sufficient evidence in support of an ADA claim.
Plaintiff has not provided more than “a scintilla” of evidence in
support of his allegation that his termination was on account of
his disability and therefore has not established a prima facie
case of disparate treatment. See Peterson v. Brookshire Grocery
Co., 2018 WL 5920410, at 2 (5th Cir. 2018).
Because this Court finds that plaintiff does not satisfy his
burden at the summary judgment stage of establishing a prima facie
case for disparate treatment, the burden does not shift to the
defendant to provide a legitimate, non-discriminatory reason for
plaintiff’s firing. Therefore, this Court does not need to analyze
the parties’ remaining arguments on that issue.
B. Reasonable Accommodation Claim
Although plaintiff did not plead a failure to accommodate
claim in his original complaint, plaintiff has not met his burden
of establishing such a claim. To establish a failure to accommodate
claim, plaintiff must prove that: (1) he is a “qualified individual
with a disability;” (2) the disability and its consequential
limitations were “known” by the covered employer; and (3) the
11

employer failed to make “reasonable accommodations” for such known
limitations. See Feist v. Louisiana, Dep't of Justice, Office of
the Atty. Gen., 730 F.3d 450, 452 (5th Cir. 2013). As stated above,
plaintiff is a qualified individual with a disability. However,
plaintiff

has

not

established

that

his

disability

and

its

limitations were “known” by the defendant. The Fifth Circuit has
held

that

“where

the

disability,

resulting

limitations,

and

necessary reasonable accommodations, are not open, obvious, and
apparent to the employer, the initial burden rests primarily upon
the employee ... to specifically identify the disability and
resulting

limitations,

and

to

suggest

the

reasonable

accommodations.” See Griffin v. United Parcel Serv., Inc., 661
F.3d 216, 224 (5th Cir. 2011). Once an individual with a disability
makes

such

a

request,

then

the

“appropriate

reasonable

accommodation is best determined through a flexible, interactive
process

that

involves

both

the

employer

and

the

qualified

individual with a disability.” See Taylor v. Principal Fin. Grp.,
Inc., 93 F.3d 155, 165 (5th Cir. 1996) Therefore, it is the
employee’s initial request that triggers the employer’s obligation
to engage in this interactive process. “If the employee fails to
request an accommodation, the employer cannot be held liable for
failing to provide one.” Id. Plaintiff has not provided evidence
to show that he specifically identified his disability to defendant
and

requested

reasonable

accommodations.
12

As

earlier

noted,

plaintiff asserts he informed defendant of his HIV-positive status
by providing an unnamed depot clerk with a medical record in
advance of his absence for a medical procedure on May 10, 2016.
However, that action neither shows that plaintiff specifically
identified his HIV-positive status to defendant nor requested a
reasonable accommodation for it. Plaintiff’s deposition testimony
demonstrates that he was not aware of any specific individual who
knew about his HIV-positive status, which means that he did not
take

the

step

of

identifying

it

to

defendant

and

seek

an

accommodation for it. Defendant therefore cannot be held liable
for failing to provide reasonable accommodations. The evidence
provided by defendant and plaintiff’s lack of evidence would not
allow a reasonable jury to return a verdict for the plaintiff,
therefore summary judgment is proper.
New Orleans, Louisiana, this 13th day of February, 2019.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

13