Ariza v. Loomis Armored US, LLC

Filing 119

ORDER denying 51 Motion for Summary Judgment. Signed by Judge John W. deGravelles on 09/23/2015. (KDC)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

LIZA C. ARIZA,
Case No. 3:13-cv-00419-JWD-SCR
Plaintiff,
v.

LOOMIS ARMORED US, LLC,

Defendant.

ORDER AND RULING ON
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

I.

INTRODUCTION
Before the Court are Defendant Loomis Armored US, LLC’s Motion for Partial

Summary Judgment (“MSJ”), (Doc. 51); Plaintiff’s Opposition Memorandum to Defendant’s
Motion for Partial Summary Judgment (“Plaintiff’s First Opposition”), (Doc. 54); and three
copies of the same motion—Defendant’s Reply Memorandum to Plaintiff’s Opposition
Memorandum to Defendant’s Motion for Partial Summary Judgment (“Defendant’s Reply
Memorandum”), (Doc. 58, 60, and 63). Three others touch upon the arguments discussed therein:
Defendant’s Proposed Memorandum in Support of Motion for Leave to File a Supplemental

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memorandum in Support of Motion for Partial Summary Judgment Filed by Defendant Loomis
Armored US, LLC to Dismiss Plaintiff’s Claims Pursuant to the Americans with Disabilities Act
(ADA) for Failure to Set Forth a Prima Facie Case That She has a Disabling Condition of
Epilepsy and/or Seizures [Doc. #51] (“Defendant’s Proposed Memorandum”), (Doc. 110); Liza
Ariza’s Opposition Memorandum to Defendant’s Supplemental Memorandum to its Motion for
Partial Summary Judgment (“Plaintiff’s Second Opposition”), (Doc. 111); and Defendant’s
Proposed Reply Memorandum to Plaintiff’s Opposition to Loomis’s Supplemental Memorandum
in Support of Motion for Partial Summary Judgment to Dismiss Plaintiff’s Claim Pursuant to the
Americans with Disabilities Act (“Defendant’s Second Reply”), (Doc. 114). In the MSJ, as
supported by its other related filings, Loomis Armored US, LLC (“Loomis” or “Defendant”), has
moved for summary judgment against Ms. Liza C. Ariza (“Ariza” or “Plaintiff”), a former
employee who has sued Loomis for discrimination on the basis of a specific disability: a type of
chronic seizure disorder, possibly embraced in full by the clinical term “epilepsy.”
Pursuant to Federal Rule of Civil Procedure 56,1 Defendant’s MSJ must fail primarily
because Defendant has rested its motion on an incomplete construal of the disjunctive “definition
of disability” set forth in the Americans with Disabilities Act of 1990, as amended in 2008
(“ADA”). While a person qualifies as disabled if he or she suffers from a recognizable and
verifiable impediment, the ADA does not constrict its definition so exactly. In fact, it encodes a
third definition traceable to this act’s ameliorative and expansive intent. Under this third possible
denotation, Plaintiff does not need to prove a disability’s existence or provide a record so
attesting to qualify for its protection; instead, so long as Plaintiff can later show Defendant
perceived her to be disabled and terminated her due to its belief regarding the ramifications of
1

In this opinion, any and all further reference to “Rule” or “Rules” are to the Federal Rules of
Civil Procedure unless otherwise noted.
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this disability, she is “disabled” within the ADA’s broad parameters. As the evidence, construed
in the nonmovant’s favor, does not discount this third possibility as a matter of law, the
complaint must, at present, survive. Notably and significantly, this result would follow even if
every assertion that Defendant makes in the MSJ—an utter dearth of decisive proof of a
disability’s actuality in this case’s factual record and an unbelievable Plaintiff and mother—is
assumed to be incontrovertibly true.
Here, however, the factual evidence is not so crystal-clear. Rather, in advancing this
unqualified assertion, Defendant obscures and exaggerates the manifold inconsistencies and
omissions in Plaintiff’s medical evidence. In particular, Defendant makes too much of two
doctors’ testimony in each and every filing, but these men’s accounts are rife with discrepancies
that may convince a jury to disregard their most recent—and movant-favoring—testimony.
Viewing the record as a whole, then, as Rule 56 compels this Court to do, key material facts
remain unsettled, and a reasonable factfinder may readily disbelieve much that Defendant now
characterizes as irrefutable verities. In fact, more than a scintilla of evidence can still be
assembled so as to create a pro-Plaintiff case as to, among other matters, Defendant’s perception
of Plaintiff’s medical state and its good-faith efforts at accommodating Plaintiff’s assumed
disability. Thus, when the record is actually considered in full, with only unimpeachable and
unquestionable evidence branded as fact, a victory for Plaintiff can still be reasonably
envisioned.
As such, for these reasons, as more fully explicated below, the MSJ is DENIED.

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II.

BACKGROUND

A.

Introduction
This case began with a complaint filed on June 28, 2013 (“Complaint”). (Doc. 1 at 1.)

Once a driver and a vault supervisor for Defendant, Plaintiff sued Loomis, her last employer, for
violations of five statutes: the ADA, 42 U.S. § 12101 et seq., and Louisiana’s state equivalent,
LA. REV. STAT. ANN. § 23:322 et seq.; the Family and Medical Leave Act of 1992 (“FMLA”), 29
U.S.C. §§ 2601-2654; and the Civil Rights Act of 1962, 42 U.S.C. § 2000 et seq., and its own
Louisiana parallel, LA. REV. STAT. ANN. § 23:322. (Doc. 1 at 1) Her allegations distilled, the
Complaint requests monetary and injunctive relief for “unlawful discrimination in employment”
on the bases of “disability, sex, and retaliation.” (Doc. 1 at 1–2.)

B.

Brief History
Defendant hired Plaintiff on February 18, 2008, as a guard for one of its armored trucks.

(Doc. 1 at 3; see also Doc. 51-1 at 3.) Allegedly, Defendant suffered a seizure in September 2008
during her shift. (Doc. 1 at 3.) Another supposedly struck her at home in December 2008. (Id. at
4.) After a Dr. Wissner told Plaintiff she could no longer work as a truck driver, Defendant
reassigned Plaintiff, and she started working as a custodian within one of Defendant’s money
vaults. (Id.) In 2009, Plaintiff again began working as a guard, a gun worn daily. (Id.) Later, she
obtained a full-time position as “a 17 Vault Supervisor.” (Id. at 5.) On June 5, 2012, Plaintiff
purportedly suffered a third seizure (“Incident”). (Id. at 6–7.)
After the Incident occurred, for which Plaintiff was hospitalized, she was examined by
Dr. William W. Gladney, Jr. (“Dr. Gladney” or “Gladney”), a neurologist. (Id. at 7.) In June
2012, Dr. Galdney conducted a magnetic resonance imaging (“MRI”) scan and an

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electroencephalogram (“EEG”) test; the results were normal. (Id. at 8.) Dr. Galdney also spoke,
with Plaintiff’s permission, to her primary care physician, Dr. Bruce Craig (“Craig” or “Dr.
Craig”), “about her physical condition.” (Id.) On June 12, 2012, Dr. Gladney signed a release
authorizing Plaintiff to recommence her employment as a vault supervisor. (Id. at 7.) Seemingly,
in spite of this doctor’s written approval, Ms. Susan Robinson, Plaintiff’s supervisor, refused to
sanction Plaintiff’s return, the Parties disputing the precise motive. (Id.)
Eventually, Plaintiff sought leave under the FMLA. (Id.) Defendant approved a leave
period of June 5 through August 7, 2012. (Id.) During this time, Plaintiff underwent sinus
surgery and provided Defendant with a note from a new doctor, Dr. Charles F. Mitchell, stating
that she could return to work. (Id. at 8–9.) Despite this authorization, at Defendant’s insistence,
Plaintiff went to see another doctor, Dr. Uzoma Moore (“Moore” or “Dr. Moore”). (Id. at 9.) Dr.
Moore found Plaintiff “unable to perform essential functions”; though he wrote “No medical
restrictions,” he added, “Pending-Medial Hold” and “Needs Clearance,” to his official report.
(Id.) Dr. Moore asked Plaintiff to have Dr. Craig forward “paperwork documenting his finding
that she was able to return to work”; Plaintiff promised to do so. (Id.) Dr. Craig confirmed
Plaintiff’s diagnosis during a phone conversation with Dr. Moore. (Id.)
Both due to Dr. Moore’s examinations and Defendant’s demand that she undergo more
testing, Plaintiff did not return to work after August 27, 2012, the extended expiration date of her
FMLA leave period. (Id.) Throughout September 2012, Defendant repeatedly directed Plaintiff
to Dr. Moore for further examination. (Doc. 54 at 7–13.) Frustrated by these demands, Plaintiff
filled and filed an intake questionnaire for the Equal Employment Opportunity Commission
(“EEOC”) against Defendant, and the EEOC mailed Defendant notice of Plaintiff’s “unperfected
charge of discrimination” on October 5, 2014. (Doc. 1 at 9.) Its receipt of this notice

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unestablished, Defendant terminated Plaintiff on October 11, 2012. (Doc. 54 at 12.) In this
termination letter, Defendant cited Dr. Moore’s refusal to release Plaintiff on the basis that her
job required a gun be carried, this ability deemed “essential.” (Id. at 12.)
Three different doctors consistently reappear throughout this tale and in nearly every
pertinent motion: Gladney, Plaintiff’s neurologist, who both saw her personally and was deposed
by Defendant; Craig, apparently her longtime primary care physician who also testified at a
deposition; and Moore, a specialist contracted by Defendant and to whom Defendant directed
Plaintiff so as to procure her official and final clearance. (Doc. 1, 51-1, 54-1, 110, 111, 114.)

III.

PARTIES’ ARGUMENTS

A.

MSJ
In the MSJ, Defendant insists Rule 56 compels its motion’s full success for one

overarching reason: “Plaintiff has failed to provide a scintilla of evidence that she has a disabling
condition of epilepsy/seizures and she has shown no evidence whatever that she is substantially
limited in any major activity.” (Doc. 51-1 at 3.) By choice, therefore, Defendant has narrowed
the Court’s inquiry: Defendant “respectfully submits this motion for partial summary judgment
to dismiss plaintiff’s . . . claims pursuant to the Americans with Disabilities Act (ADA) for
failure to set forth a prima facie case that she has a disability.” (Id. at 1 (emphasis added); Doc.
51-1 at 1.) For support, Defendant points to four items of evidence indicating Plaintiff’s want of
a requisite disability: (1) her treating physicians, Doctors Craig and Gladney, “have specifically
testified that she does not have a disabling condition”; (2) “there are no medical records wherein
a physician and/or physicians have ever diagnosed [her with] epilepsy or seizure activity”; (3) no
evidence of such a disability appears in her post-high school employment records; and (4) her

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file at the Office of Motor Vehicles is similarly bereft. (Doc. 51-1 at 3.) In fact, with discovery
having concluded, the only evidence that Plaintiff suffers from an epileptic condition are
“unsubstantiated statements made by Ms. Ariza that she has epilepsy and seizure.” (Id.) As such,
Plaintiff has failed to make, as Rule 56 requires, the prima facie case that she suffers from a
disabling condition. (Id. at 2.)

1.

Records’ Review

Initially, Defendant points to Plaintiff’s work-related records. The MSJ first takes up
Plaintiff’s examination by Dr. J. Louis Tonure, Jr., undertaken by Plaintiff so that she could
obtain her commercial driver’s license. (Id. at 3.) To this physician, Plaintiff recounted a “history
of two seizures,” “possible” and not “definite” in the doctor’s words, but she stated she had
“never been prescribed medication for these alleged seizures” and did not acknowledge herself to
be epileptic. (Id.) Even her non-commercial driver’s license evidenced no restrictions
traditionally appended in regards to those suffering from seizures generally or epilepsy
specifically. (Id.). To this point, Defendant returns in the MSJ’s later paragraphs, citing to
Plaintiff’s applications for a driver’s licenses issued on three separate dates—June 27, 2003;
February 2, 2007; and October 10, 2011—in which she checked “no” when asked about any
prior experiences of “loss of consciousness other than normal sleep” and otherwise did not
affirmatively indicate the existence of any physical or mental condition significant enough to
impair her ability to drive. (Id. at 5–6.) In her employment application to Loomis, Plaintiff again
did not identify herself as disabled. (Id. at 4.) Earlier employment records, subpoenaed by
Defendant during discovery, evince a similar absence, not one referencing “any accommodation
for alleged seizures.” (Id.)

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Next, Defendant argues from Plaintiff’s subpoenaed medical records. Allegedly, Plaintiff
suffered a seizure while in the military’s employ, but “the records do not reflect any such
incident,” containing “no mention of any seizure, syncopal episode, or fainting.” (Id. at 8.) When
she was seen on December 26, 2003, at the Huey P. Long Hospital, she complained of a
syncopal, i.e. fainting, episode, but she did not seek any medical attention or receive a
prescription of any kind. (Id. at 6–7.) Without reference to authoritative medical sources, only
the testimony of Craig and Gladney, Defendant states: “A syncopal episode means fainting, it is
not epilepsy or seizures, it is simply fainting.” (Id. at 7.) Apparently, “Drs. Craig and Gladney
agree with the diagnosis of two fainting episodes and that plaintiff has no disability.” (Id.)
Another fainting spell—or seizure—occurred on or about August 30, 2007. The records
of the Baton Rouge General Medical Center (“BRGMC”) documenting this incident “note that . .
. [Plaintiff] had blurred vision and passed out, symptoms of fainting not epilepsy.” (Id.) Her
doctor at the time, however, once more diagnosed a fainting spell and chose not to prescribe antiseizure medication for Plaintiff’s future use. (Id.) EEG and x-ray computed tomography (“CT”)
scans were performed, each apparently normal, and “[t]he discharge instructions give a diagnosis
of syncopal episode (fainting), not epilepsy or seizure activity.” (Id. at 8.) The same result
followed after another fainting spell and another admission to BRGMC on September 9, 2008:
“Drs. Gladney and Craig testified in their depositions that the[] symptoms [recorded on this
September record] are not epilepsy or seizure.” (Id.)

2.

Doctor’s Deposition Testimony

Defendant begins with Gladney, “the sole physician who would testify that she had a
severe epilepsy disorder” by Plaintiff’s own admission. (Id. at 13–14.). At his deposition,

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Gladney reviewed the record of Plaintiff’s hospitalization on August 30, 2007; it indicated a
“normal EEG and a normal CT scan of the brain,” “no tongue biting,” “no tonic/clonic
movement,” and a general “symptomology of blurred vision.” (Id. at 11.) When asked for the
first time to review this record in the midst of his deposition, Gladney deduced that this was “a
fainting spell and not a seizure.” (Id.) In this testimony, he specifically highlighted the “no
tonic/clonic movement” phrase, maintaining that it revealed the treating physician’s belief “that
he doesn’t think it’s a seizure.” (Id.) Dr. Gladney said the same about Plaintiff’s other alleged
episodes: that Plaintiff had suffered through a fainting spell alone; the EEGs performed were
normal; and that her actions in the Incident’s immediate aftermath, including sipping water to
leaving her head on the table to crying, were inconsistent with any seizure. (Id. at 12–13.)
Though the Incident consumed much time, Plaintiff’s written records led Gladney to state under
oath “that Ms. Ariza is not disabled in any manner whatsoever” and “does not have a disability at
all which would affect or limit her social or work life.” (Id. at 13.)
The MSJ then turns to Dr. Craig, his testimony further “negat[ing] Ariza’s allegations
that she has a disability due to epilepsy and seizures.” (Id. at 14.) A family physician, Craig
evaluated Plaintiff when she was young. (Id.) At the time, Craig diagnosed Plaintiff with a
“fainting spell”; he did not order an MRI “because she did not have seizures”; and he never
“refer[red] her to a neurologist” and himself “conducted no tests.” (Id. at 15.) His records’
reference to “seizures” reflected not medical analyses but a digest of Plaintiff’s self-told history,
a wholly “unsubstantiated” account that he did not question or regard as absolutely credible. (Id.
at 15, 16, 17) At present, moreover, Craig does not believe Plaintiff was disabled “during the
period of time he saw her in her childhood to this day.” (Id. at 16.) Yet, in an affidavit dated
March 6, 2014, Dr. Craig opined that “Ariza suffers from a seizure disorder,” one he described as

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“under control.” (Id.)

3.

Absence of Discriminatory Motive

In the MSJ’s final pages, Defendant makes a new argument: “[P]laintiff has failed to
show any discriminatory or retaliatory actions on the part of Loomis,” with “all of the evidence
and testimony show[ing] that Loomis bent over backwards to assist Ms. Ariza in obtaining a
medical release back to employment.” (Id. at 17.) To support this argument, Defendant claims
Plaintiff “refused to cooperate with being evaluated by a neurologist of her choice in order to get
a clearance back to work,” a doctor to be paid by Loomis alone. (Id.) Above all, Plaintiff never
obtained the precise documentation requested by Dr. Moore so as to permit a complete analysis
of her true handicap. (Id. at 17–18.) Later, Defendant would again advise Plaintiff that she
needed to see a neurologist, one for which it would pay, in order to gather “medical information
indicating that she could safely perform her job duties with or without accommodation,” conduct
described as “prudent” by Dr. Gladney himself. (Id. at 19.) The MSJ also emphasizes that Dr.
Moore assumed that a gun was absolutely essential for Plaintiff’s position, a condition set by
Defendant and openly communicated to Plaintiff. (See id. at 18–19.) Overall, as Defendant
steered Plaintiff to a neurologist and offered to pay for any such evaluation, it “in no way
discriminated against Ms. Ariza.” (Id.)

4.

Conclusion

As this summary shows, the MSJ focuses its attention on one issue: whether or not the
Plaintiff has a proven disability. (Id. at 20.) No more is directly contested, only her “standing to

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bring a claim under the ADA” on the basis of a proven disability.2 (Id.) Due to this lack of
evidence, Defendant closes, “there is no material fact in dispute.” (Id.)

B.

Plaintiff’s First Opposition
Plaintiff’s First Opposition argues that Plaintiff is “indeed disabled” under the ADA and

that summary judgment is therefore improper. (Doc. 54 at 1.) Though not so tightly organized,
for ease of reference, this Court construes it as two parts. The first part attempts to marshal
affirmative evidence that Plaintiff is disabled. This motion’s second part attacks the MSJ’s
interpretations of the evidence unearthed, essentially highlighting its supposed deficiencies.

1.

Affirmative Arguments

Plaintiff makes five central arguments to solidify her contention: over a lifetime, she has
long lived under a seizure’s menace, though the disease itself has struck her “infrequent[ly]” and
could “be controlled by medication.” (Id. at 2; see also Doc. 54-1 at 8.)
First, because “Ariza has not been entirely honest with all employers and the State
Department of Motor Vehicles regarding her seizures,” those empty records should not be
accorded undue weight at this summary judgment stage. (Doc. 54 at 2.) She has lied beforehand,
this defense implies, but that admission should not divert the Court from the ADA’s broad
definition of disability. In other words, while such a past, if not controverted at trial, may raise

2

Though the meaning is clear, Defendant here imprecisely utilizes the term “standing.”
Technically, the doctrine of standing deals with a court’s own jurisdiction to adjudicate a
particular person’s case. See, e.g., Elk Grove United Sch. Dist. v. Newdow, 542 U.S. 1, 11, 124 S.
Ct. 2301, 159 L. Ed. 2d 98 (2004); Tandy v. City of Wichita, 380 F.3d 1277, 1283 (10th Cir.
2004). In contrast, a plaintiff without a cognizable disability, as defined in the ADA, lacks a
claim under the statute, not the standing to contest the merits. Cf. EEOC v. Tex. Bus Lines, 923 F.
Supp. 965, 970 (S.D. Tex. 1996).
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questions about her present allegations’ credence, it does not conclusively prove more than an
absence of documentation for her alleged claims, and it does not in and of itself disprove her
disability. Here, Plaintiff attributes this lack of candor to her circumstances “as a single mother . .
. [who had to make] decisions . . . to ensure employment and a license to get . . . to work.” (Id.)
Second, Plaintiff contends that she did tell previous employers of her disability. (Id. at 2–
3.) She offers as examples a Capital One interviewer, a recruiter with the Louisiana National
Guard, and a supervisor, Ms. Bess Franklin, with Pro-Lending Staffing. (Id. at 3.) The fact that
there is no overwhelming documentary evidence to buttress this claim, she maintains, is not yet
fatal to her case. (Id.)
Third, at least some persons described the Incident in a manner consistent with a seizure.
(Id. at 4–5.) Plaintiff points to the written accounts of Ms. Stacie Robinson and Mr. Robert
LaFolette, her former supervisors. (Id.) Texts sent by the latter are also cited as supporting
evidence. (Id. at 5.)
Fourth, Plaintiff maintains that she diligently followed Defendant’s good-faith
instructions, obtaining the required clearance prior to her attempted return. When Defendant
asked for a test by a neurologist, she got one from Dr. Gladney, a neurologist, who later released
her to return to work. (Id. at 5–6.) When Dr. Moore, Defendant’s chosen doctor, requested
information from her prior doctors, she readily offered Dr. Craig’s contact information. (Id. at 7.)
She even provided Dr. Moore with a release allowing him to speak with her every doctor and
peruse her every record. (Id. at 9.) In the end, Plaintiff did submit “return-to-work statements
from three doctors,” thereby providing “medical information stating it would be safe for her to
return to work.” (Id. at 12.) At least one email, Plaintiffs contends, reveals that Defendant
considered terminating Plaintiff on September 14, 2012, though Dr. Moore had not yet obtained

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the documentation he requested. (Id. at 10, 101.) In Plaintiff’s retelling, with arguably one
exception, she conscientiously solicited the opinions of three different doctors, none of whom
posed any objection to her imminent return to a Loomis vault. (Id. at 11, 12.)
In her fifth contention, Plaintiff argues that emails exchanged by Defendant’s various
employees and these officials’ resulting conduct reveal a “strategy to blame Ariza for Loomis
refusal to return her to work.” (Id. at 6.) For example, Defendant’s employees encouraged
Plaintiff to take FMLA leave and demanded she provide paperwork from the doctor who
performed her sinus surgery. (Id. at 6–7.) Seemingly, one official, Ms. Rebekah Jackson,
“warn[ed] the Baton Rouge Loomis branch that Ms. Ariza may try to show up for work.” (Id. at
7.) In the ensuing days, even as Plaintiff sought to resume her interrupted professional life, she
received only “unfriendly” attitudes from various Defendant officials, including Ms. Jackson
once more and Ms. Elizabeth Calloway. (Id. at 8–9.) Tellingly, Defendant apparently provided
two different job descriptions to Dr. Moore: the first did not list a weapon as a requirement, but a
second iteration quite clearly did. (Id. at 9, 100, 103–04.) And though “three doctors had . . .
approved . . . [Plaintiff’s] return to work four times,” Defendant still resisted, choosing not to
“open[] up the discussion [about possible accommodation] to Liza and Loomis supervisors” or to
“brainstorm[] on possible accommodations to forego instances where a weapon is normally
required.” (Id. at 11.) Even Dr. Moore, Plaintiff argues, eventually tendered a qualified refusal,
not the absolute one described in Defendant’s MSJ: “He concluded that employees could work in
that environment[, one ‘where firearms are involved while having to respond to potentially
dangerous situations,’] but only if the employee had been seizure free for some time and no
longer at risk for a seizure.” (Id. at 11 (emphasis added).)

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2.

Attacks on MSJ’s Reasoning

Plaintiff commences by stressing Defendant’s reliance on the ADA’s formerly strict
definition of “disability,” expanded in 2008. (Id. at 16–17.) Relatedly, she insists, a court’s focus
must be not on the existence of a disability but on “whether the covered entities have complied
with their obligations and whether discrimination has occurred.” (Id. at 16 (quoting Garner v.
Chevron Phillips Chem. Co., L.P., 834 F. Supp. 2d 528, 538 (S.D. Tex. 2011)).) As this
ameliorative law should not be so narrowly read as to dismiss a complaint supported by at least
some evidence, Plaintiff’s own complaint should survive, her occasional seizures physically
limiting when in an active state and thus comprehended by the ADA’s definition if “construed as
broadly as possible.” (Id. at 16, 17.)
Plaintiff then launches a three-pronged attack on the MSJ. First, she insists she does have
a disability, citing to a history of thinly documented seizures and a diagnosis of epilepsy by Dr.
Craig (and a prescription of anti-seizure medicine).3 (Id. at 19–21.) She has had, she insists,
“seizures as an adult in 2003, 2004, 2006, 2008 (two), 2010, and 2012.” (Id. at 18.) She argues
that the numerous assertions in the MSJ are “false,” from what she told her former employers to
what Gladney and Craig actually meant in their depositions to her prescription history. (Id. at
21–23.) Without citation to an authoritative medical source, she voices a common complaint—
“that doctors order too many tests to diagnose patients’ illnesses”—and observes: “Diagnosing
[epilepsy generally or a seizure particularly] is difficult as the person must be undergoing a
seizure for the test to find seizure activity which, in Ms. Ariza’s case, only occurs infrequently.”
(Id. at 19.) Second, Defendant did not truly accommodate Plaintiff, as it insists, (Doc. 51-1 at
17–19). Instead, it did the very opposite when it chose (1) not to offer her with an
3

Defendant, of course, had argued differently, though Plaintiff’s First Opposition does at least
produce her insurance profile from Walgreen’s. (Doc. 54-1 at 20.)
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accommodation, though one could have been provided without unduly burdening Defendant and
without sacrificing any of her job’s essential functions, and (2) not “[to] engage in interactive
discussion” with Plaintiff about how to do so. (Id. at 24.) In this vein, Plaintiff contends that the
ability to use a weapon is an inessential aspect of the vault supervisor position, for “[i]t would
not be necessary for the vault supervisor to wear a weapon as other workers’ weapons could
suffice,” and Plaintiff stresses that Defendant left Plaintiff mostly uninformed about the precise
information it desired to ensure her medical clearance in August and September 2012. (Id. at 25–
27.) Third, since Defendant did regard Plaintiff as disabled, a belief reflected by its various
recorded employees’ comments, Plaintiff could not legally be fired so long as she could perform
her job’s essential functions under the ADA, broadly understood. (Id. at 29–30.) She could
perform those functions even without a gun, she remarks, and Defendant’s actions therefore ran
afoul of the ADA. (Id.)

C.

Defendant’s First Reply
Defendant’s First Reply entirely reiterates the MSJ’s prior points. Thus, it argues that

“Plaintiff has failed to present any evidence through a qualified treating physician or diagnostic
testing that she has epilepsy and/or seizures and that she has any impairment that substantially
limits any major activity”; “[s]imply stated, “there is no medical diagnosis that supports
Plaintiff’s claim that she has seizures or epilepsy, and hence her entire claim should be
dismissed.” (Doc. 58 at 1; Doc. 60 at 1; Doc. 63 at 1.) Once more, Defendant writes: “Based
upon the evidence adduced to date, [P]laintiff has a sporadic history of dizziness and vertigo, but
never a diagnosis of seizures or epilepsy.” (Doc. 58 at 1; Doc. 60 at 1; Doc. 63 at 1.) Once more,
Defendant cites to the deposition testimony of Plaintiff’s own treating physicians, in which both

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doctors averred to the absence of epilepsy’s proof and a history of apparently normal medical
tests. (Doc. 58 at 2–3, 5–7; Doc. 60 at 2–3, 5–7; Doc. 63 at 2–3, 5–7.) Once more, Defendant
points to Plaintiff’s employment record, with no disability mentioned, and attacks Plaintiff’s
alleged reasons for this discrepancy. (Doc. 58 at 3–4; Doc. 60 at 3–4; Doc. 63 at 3–4.) And once
more, Defendant ends by insisting that “Loomis never acted in a discriminatory or retaliatory
manner.” (Doc. 58 at 7–8; Doc. 60 at 7–8; Doc. 63 at 7–8.) Regardless of how the record may be
sliced and diced, Defendant’s conclusion remains constant: “Plaintiff has not presented a scintilla
of evidence to meet her burden that she has seizures/epilepsy, and that this alleged condition is
disabling” as defined by the ADA, (Doc. 58 at 8; Doc. 60 at 8; Doc. 63 at 8).

D.

Defendant’s Proposed Memorandum
Defendant’s Proposed Memorandum recaps prior reasons: “[I]nalterable facts and

evidence . . . prove plaintiff Ariza has not established that she has a disability under the
Americans [w]ith Disabilities Act.” (Doc. 110 at 1.) Once more, it stresses the record’s
barrenness: “In all of the medical records identified by [P]laintiff, military records, employment
records, deposition testimony of Drs. Bruce Craig and William Gladney, there is no provable
evidence of seizures or epilepsy,” Plaintiff’s own “self-serving testimony and that of her mother”
alone crediting her with a disability. (Id. at 1, 3) Nonetheless, Defendant’s Proposed
Memorandum does add something to the existing record. Touching upon the matter briefly in the
motion’s main body, (id. at 1), it includes Plaintiff’s United States Army records from Fort
Jackson as attachments. These records show no disability and even include a questionnaire,
signed by Plaintiff and her mother, disclaiming any possible disability, throwing both persons’
credibility into question. (Doc. 110-1.)

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E.

Plaintiff’s Second Opposition
Plaintiff’s Second Opposition emphasizes this Court’s duty to consider all “new and

earlier evidence” to divine whether a reasonable trier of fact “could reasonably conclude that . . .
[Plaintiff] was disabled.” (Doc. 111 at 1.) Enough evidence exists for this conclusion to still be
possible, as “Ms. Ariza and her mother stated that . . . [she] has epilepsy” and her “physician was
convinced of her epilepsy” sufficiently to “prescribe[] medication for it.” (Id. at 2.) A physician
who allegedly reviewed another’s notes about the Incident and watched its video recording did
not wholly discount the possibility of a seizure, remarking that “she might have had a seizure or
could have been a clonic phase.” (Id. at 3 (emphasis added).) Thus, despite Loomis’ allegations,
more evidence of Plaintiff’s epileptic disability than her own and her mother’s statements can be
found. (Id.) Stress is again paid to the seeming fact that “a definitive diagnosis is possible only if
the patient suffers a seizure while in the doctor’s office,” “unlikely given how infrequently
seizures [allegedly] occurred.” (Id. at 4.) Throughout her employment, moreover, “Loomis
officials also believed that Ms. Ariza suffered from epilepsy.” (Id. at 3, 4.) To argue otherwise
now “is inconsistent and odd.” (Id. at 4.) In its concluding paragraphs, as Plaintiff did in her first
attempt, (Doc. 54 at 16), this motion urges the Court not to be distracted from the ADA’s
“primary object”: “whether the covered entities have complied with their obligations and
whether discrimination occurred, not whether the individual meets the definition of disability.”
(Id. at 5 (quoting Garner, 834 F. Supp. 2d at 538).)

F.

Defendant’s Second Reply
Defendant’s Reply highlights how Plaintiff has seemingly ignored the implications raised

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by the latest military records and mocks Plaintiff’s latest tactic—that “she was dishonest due to
employment”—as “disingenuous” and “dishonest.” (Doc. 114 at 1.) Plaintiff’s assertion is belied
by the fact, Defendant continues, that she has also claimed to have revealed her disability to
Defendant’s district manager, who has sworn to the contrary. (Id. at 1–2.) Beyond this point,
Defendant’s Reply reiterates old points—the generally empty record and Dr. Gladney’s skeptical
assessment, most prominently—all of which undermine Plaintiff’s deposition testimony,
discredit her mother, and underscore the essential weakness of her case: “All of [P]laintiff’s
argument is pure unsubstantiated rhetoric, without any supporting evidence.” (Id. at 2–4.)

IV.

DISCUSSION

A.

Relevant Standards
1.

Rule 56

Within Rule 56 lies the standard applicable to Defendant’s MSJ. Per Rule 56(a),
summary judgment is generally appropriate “if the movant shows there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.
56(a); Wilson v. Tregre, 787 F.3d 322, 325 (5th Cir. 2015) (quoting Rule 56(a)). A dispute is
“genuine” so long as “the evidence is such that a reasonable jury could return a verdict for the
nonmoving party”; a fact is “material” if it “might affect the outcome of the suit under the
governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91
L. Ed. 2d 202 (1986); see also Ray v. United Parcel Serv., 587 F. App’x 182, 186 (5th Cir. 2014)
(citing id.). Axiomatically, a court construes all facts and evidence in the light most favorable to
the nonmovant. Haverda v. Hays Cnty., 723 F.3d 586, 591 (5th Cir. 2013). Nonetheless, in
response to another’s motion, the nonmovant cannot rely on “[c]onclusory allegations,

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speculation, unsubstantiated assertions, and legalistic arguments.” TIG Ins. Co. v. Sedgwick
James of Wash., 276 F.3d 754, 759 (5th Cir. 2002). “When both parties have submitted evidence
of contradictory facts,” Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005),
a court is bound to “draw all reasonable inferences in favor of the nonmoving party” and cannot
“make credibility determinations or weigh the evidence,” Reeves v. Sanderson Plumping Prods.,
530 U.S. 133, 150, 120 S. Ct. 2097, 2110, 147 L. Ed. 2d 105 (2000); see also Anderson, 477 U.S.
at 248, 106 S. Ct. at 2510 (emphasizing the irrelevance of “[a]ny proof or evidentiary
requirements imposed by the substantive law,” materiality “not a criterion for evaluating the
evidentiary underpinning of [factual disputes]”).
In utilizing Rule 56, this Court must “give credence to the evidence favoring the
nonmovant as well as that evidence supporting the moving party that is uncontradicted and
unimpeached, at least to the extent that that evidence comes from disinterested witnesses.” 9A
CHARLES WRIGHT, ATHUR MILLER, ET AL., FEDERAL PRACTICE AND PROCEDURE § 2529 (2d ed.
1995); accord Latiolais v. Cravins, 547 F. App’x 429, 433 (5th Cir. 2014) (internal quotation
marks omitted) (citing Reeves, 530 U.S. at 151, 120 S. Ct. at 2110). In other words, although this
Court “should review the record as a whole, it must disregard all evidence favorable to the
moving party that the jury is not required to believe.” Reeves, 530 U.S. at 151, 120 S. Ct. at
2110, cited in Havera, 723 F.3d at 591. Under Rule 56, summary judgment is hence
inappropriate (1) if there are legitimate, neither superficial nor frivolous, factual disputes that
may affect the outcome of the case under the applicable substantive law, see Anderson, 477 U.S.
at 248, 106 S. Ct. at 2510, and (2) so long as the nonmovant does not exclusively rely on “some
metaphysical doubt as to the material facts,” “conclusory allegations,” “unsubstantiated
assertions,” or “a scintilla of evidence,” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.

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1994), or on evidence that no tribunal could reasonably deem true and indisputable as a matter of
law, Integra Lifesciences I, Ltd. v. Merck KGaA, 496 F.3d 1334, 1345 (Fed. Cir. 2007) (quoting
Reeves, 530 U.S. at 151, 120 S. Ct. at 2110). “Credibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the facts” remain, as they long have
been, “jury functions, not those of a judge.” Anderson, 477 U.S. at 255, 106 S. Ct. at 2513; see
also Rice v. ReliaStar Life Ins. Co., 770 F.3d 1122, 1129 (5th Cir. 2014) (quoting id.).4

2.

ADA

Adopted so as “to provide a clear and comprehensive national mandate to end
discrimination against individuals with disabilities,” S. REP. NO. 101-116, at 2 (1989); see also
42 U.S.C. § 12101(b) (listing the ADA’s varies purposed, including “to provide a clear and

4

Occasionally, Rule 56 has been more strictly construed in the context of employment
discrimination than it has in other matters. As one appellate panel observed, “motions for
summary judgment in employment discrimination cases are scrutinized more carefully because
of the inherently factual nature of the inquiry and the factual standards set forth by Congress.”
Henderson v. Ford Motor Co., 403 F.3d 1026, 1032 (8th Cir. 2005); see also, e.g., Feick v.
Sivalls, Inc., No. 1:12-cv-107, 2014 U.S. Dist. LEXIS 359, at * 1–2, 2014 WL 29530, at *1
(D.N.D. Jan. 3, 2014) (citing id.); Lizotte v. Dacotah Bank, 677 F. Supp. 2d 1155, 1161 (D.N.D.
2010) (same). For this reason, in some courts’ view, “summary judgment should seldom be used
in employment-discrimination cases,” appropriate in those rare cases when the record truly
evidences no genuine factual dispute and demands no analysis of a witness’ credibility. Snow v.
Ridgeview Med. Ctr., 128 F.3d 1201, 1205 (8th Cir. 1997). But see, e.g. Bucci v. Hurd Buick
Pontiac GMC Truck, LLC, 85 A.3d 1160, 1180–81 (R.I. 2014) (Goldberg, J., concurring and
dissenting in part) (discussing the problem of summary judgment in employment discrimination
cases); But see Denny Chin, Summary Judgment in Employment Discrimination Cases: A
Judge’s Perspective, 57 N.Y.L. SCH. L. REV. 671, 672 & n. 7 (2012-13) (not quarreling with “the
statistics suggesting that summary judgment is granted more often in employment cases”);
Bernice B. Donald & J. Eric Pardue, Bringing Back Reasonable Inferences: A Short, Simple
Suggestion for Addressing Some Problems at the Intersection of Employment Discrimination and
Summary Judgment, 57 N.Y.L. SCH. L. REV. 749, 757–63 (2012-13) (summarizing the various
factors that may explain why “federal courts can be inhospitable venues for employment
discrimination plaintiffs” and arguing that a more faithful and “liberal” application of the Rule
56 standard would be “a less radical suggestion . . . that fits within the current McDonnell
Douglas framework”).
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comprehensive national mandate for the elimination of discrimination against individuals with
disabilities”); Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 801, 119 S. Ct. 1597, 1601,
143 L. Ed. 2d 966 (1999) (construing 42 U.S.C. § 12101(a)(8) and (9) as embodying the ADA’s
intent “to eliminate unwarranted discrimination against disabled individuals in order both to
guarantee those individuals equal opportunity and to provide the Nation with the benefit of their
consequently increased productivity”), the ADA prohibits employers from discriminating against
a “qualified individual on the basis of disability” regarding numerous terms and conditions of
employment, 42 U.S.C. § 12112(a); Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 360–61,
121 S. Ct. 955, 960, 148 L. Ed. 2d 866 (2001). Absent direct evidence of an employer’s
discriminatory intent, ADA discrimination claims are evaluated under the burden-shifting
framework erected in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.
Ed. 2d 668 (1973). See, e.g., EEOC v. Chevron Phillips Chem. Co., LP, 570 F.3d 606, 615 n.6
(5th Cir. 2009); Powers v. Woodlands Religious Cmty., Inc., 323 F. App’x. 300, 302 (5th Cir.
2009); Simpson v. Des Moines Water Works, 425 F.3d 538, 542 (8th Cir. 2005).
In accordance with this mandatory paradigm, a plaintiff first bears the burden to establish
a prima facie case of discrimination. See, e.g., Palmer v. Albertson’s LLC, 418 F. App’x 885
(11th Cir. 2011); Buchsbaum v. Univ. Physicians Plan, 55 F. App’x 40, 45 (3d Cir. 2002). To
articulate such a case and thus meet his or her initial obligation for purposes of the ADA, a
plaintiff must show that (1) he or she is disabled under the ADA; (2) is qualified to perform the
essential functions of his or her job with or without an accommodation; and (3) was discharged
or otherwise adversely affected in whole or in part because of his or her disability. McInnis v.
Alamo Cmty. Coll. Dist., 207 F.3d 276, 279 (5th Cir. 2000); see also, e.g., Cody v. Prairie
Ethanol, LLC, 763 F.3d 992, 996 (8th Cir. 2014); Richardson v. Friendly Ice Cream Corp., 594

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F.3d 69, 74 (1st Cir. 2010).5 A fact-intensive process, discrete provisions and precepts govern
each element’s analysis.
The ADA itself demarcates the first requirement, giving a specific “definition of
disability.” 42 U.S.C. § 12102(1); see also Flanner v. Chase Inv. Servs. Corp., 600 F. App’x
914, 922 (5th Cir. 2015) (“An individual meets the requirement of ‘being regarded as having
such an impairment’ if the individual establishes that he or she has been subjected to an action
prohibited under this chapter [Equal Opportunity for Individuals with Disabilities] 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.” (quoting 42 U.S.C. § 12102(3)(A))). Since 2008, the
ADA has expressly mandated that a court interpret its unique “definition of disability . . . in favor
of broad coverage of individuals.” 42 U.S.C. § 12102(4)(A); Molina v. DSI Renal, Inc., 840 F.
Supp. 2d 984, 993 (W.D. Tex. 2011) (citing id. and asserting that the ADA’s expanded definition
of a qualified disability “was undertaken in response to court decisions that Congress felt had
created an inappropriately high level of limitation necessary to obtain coverage under the ADA”
(internal quotation marks omitted)).
The second element—a disabled individual only qualifies for the ADA’s protection “if
either with or without a reasonable accommodation, he or she can perform the essential functions
of the job,” Santiago Vera v. Williams Hospitality Grp., 73 F. Supp. 2d 161, 166 (D.P.R. 1999)
(construing 42 U.S.C. § 12111(8) (defining a “qualified individual” as one “who, with or without
reasonable accommodation, can perform the essential functions of the employment position that
such individual holds or desires”)—has been expounded in case law construing the ADA and its
implementing regulations, see, e.g., Toyota Motor Mfg., Ky. v. Williams, 534 U.S. 184, 194–96,
5

Occasionally, the test has been divided into five parts. See Rosebrough v. Buckeye Valley High
Sch., 690 F.3d 427, 431 (6th Cir. 2012).
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122 S. Ct. 681, 689–90, 151 L. Ed. 2d 615 (2001) (citing to the EEOC’s regulations but
observing that “no agency has been given authority to issue regulations interpreting the term
‘disability’ in the ADA”); EEOC v. Res. for Human Dev., Inc., 827 F. Supp. 2d 688, 694 n.5
(E.D. La. Dec. 7, 2011) (“The ADA’s implementing regulations are entitled to deference under
Chevron . . . .”); Francis v. City of Meriden, 129 F.3d 281, 283 n.1 (2d Cir. 1997) (explaining
that courts tend to “accord great deference to the EEOC’s interpretation of the ADA, since it is
charged with administrating the statute”), superseded by ADA Amendments Act of 2008, Pub. L.
No. 110-325, 122 Stat. 3553 (2008), as recognized in Guadalupe v. City of Los Angeles, No. CV
08-2194-AHM (JEMx), 2010 U.S. Dist. LEXIS 6597, at *8 n.3, 2010 WL 140389, at *3 n.3
(C.D. Cal. Jan. 11, 2010). Intentionally written broadly, these administrative sources “list[] three
nonexclusive reasons why a job function may be considered essential: (1) the position exists for
the purpose of performing the function; (2) there are a limited number of employees among
whom responsibility for the function can be distributed; and/or (3) the function is highly
specialized and the incumbent was hired for his or her expertise or ability to perform it.” 29
C.F.R. § 1630.2(n)(2); Kvorjak v. Maine, 259 F.3d 48, 55 (1st Cir. 2001) (defining an essential
function as “a fundamental job duty of the position at issue,” potentially “encompass[ing]
individual or idiosyncratic characteristics of the job”). To wit, the function which apparently
cannot be performed must “bear more than a marginal relationship to the job at issue.” Chandler
v. City of Dallas, 2 F.3d 1385, 1393 (5th Cir. 1993).
Mandatory only upon the first two’s successful showing, the third prong deals with the
propriety of an accommodation. For its purposes, a plaintiff must demonstrate that a proposed
accommodation “would enable [him or her] to perform the essential functions of [his or her] job”
and “would be feasible for the employer under the circumstances.” Tobin v. Liberty Mut. Ins.

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Co., 553 F.3d 121, 136 (1st Cir. 2009); accord, e.g., Gupta v. Donahoe, 571 F. App’x 324, 325
(5th Cir. 2014); Tyndall v. Nat’l Educ. Ctrs. Inc. of Ca., 31 F.3d 209, 213 (4th Cir. 1994). The
ADA even provides two non-exclusive examples of a “reasonable accommodation,” including
“making existing facilities used by employees readily accessible to and usable by individuals
with disabilities” or “job restructuring, part-time or modified work schedules, reassignment to a
vacant position, acquisition or modification of equipment or devices, appropriate adjustment or
modifications of examinations, training materials or policies, the provision of qualified readers or
interpreters, and other similar accommodations for individuals with disabilities.” 42 U.S.C. §
12111(9). As the Court has advised, “a plaintiff/employee (to defeat a defendant/employer's
motion for summary judgment) need only show that an ‘accommodation’ seems reasonable on
its face, i.e., ordinarily or in the run of cases.” US Airways, Inc. v. Barnett, 535 U.S. 391, 401,
122 S. Ct. 1516, 1522, 152 L. Ed. 2d 589 (2002).
Upon this three-part showing, a shift occurs. Now, the defendant-employer need
articulate a legitimate, non-discriminatory reason for the challenged action. Chapman v. AI
Transport, 229 F.3d 1012, 1024 (11th Cir. 2000); accord Khalfani v. Balfour Realty Cmtys.,
L.L.C., 595 F. App’x 363, 365 (5th Cir. 2014). If a defendant succeeds, a plaintiff must then
prove this reason to be “pretextual,” ineluctably invalid. Haire v. Bd. of Supervisors of La. State
Univ. Agric. & Mech. Coll., 719 F.3d 356, 362–63 (5th Cir. 2013) (citing McDonnell Douglas
Corp., 411 U.S. 792, 93 S. Ct. 1817).

B.

Application to Instant Motions
To prevail under Rule 56, Defendant needs to “point[] the court to the absence of

evidence to support” Plaintiff’s claim. Matlock v. City of Dallas, No. 3:97-CV-2735-D, 1999

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U.S. Dist. LEXIS 17953, at *5, 1999 WL 1032601, at *1 (N.D. Tex. Nov. 12, 1999). Here, the
MSJ specifically targets Plaintiff’s failure to establish her disability, the first element of the
required prima facie case, and generally limits itself to marshalling evidence against this single
element.6 (Doc. 50 at 1; Doc. 51-1 at 1, 20; see also, e.g., Doc. 58 at 8; Doc. 60 at 8; Doc. 63 at
8; Doc. 110 at 1, 3; Doc. 114 at 2, 5.) Restricted to this issue alone by virtue of its narrow focus,
this Court denies the MSJ for three reasons, all of which reveal the presence of several genuine
disputes of material fact. First, the MSJ misconstrues the relevant ADA provision. Read
properly, the statute actually undercuts Defendant’s argument under Rule 56 in light of its
motions’ concessions and inconsistencies. Second, though some of it militates against Plaintiff,
much of the evidence presented by Defendant is ambiguous and even contradictory, success for
either side more than conceivable. Third, enough evidence exists for a jury to find a disability so
long as this Court “disregard[s],” as it must under Rule 56, “all evidence favorable to the moving
party that the jury is not required to believe.” Reeves, 530 U.S. at 151, 120 S. Ct. at 2110
(emphasis added).

1.

Conflating the ADA’s Definitions

On its second page, the MSJ presents Defendant’s version of the ADA. (Doc. 51-1 at 2.)
“In order to have a claim under the ADA,” Defendant writes, “the [P]laintiff must first prove a
disability.” (Id. (citing to § 12102(2)).) Defendant proceeds to define a disability as “(1) a mental
or physical impairment that substantially limits not only major life activities of an individual, (2)
a record of such impairment, and (3) being regarded as having such an impairment.” (Id.

6

Despite this overriding focus, Defendant does touch upon the second and third prongs towards
the MSJ’s end. (Doc. 51-1 at 17–20.) As the Court notes later, however, it too fails to carry its
burden as to those elements. See infra Part IV.B.2–3.
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(emphasis added).) Although Defendant never veers from this statutory apperception in their
papers or at oral argument, the ADA promulgates a distinctly different definition. 42 U.S.C. §
12101.
The ADA does define a “qualified individual with a disability” as “an individual with a
disability who, with or without reasonable accommodation, can perform the essential functions
of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8); Shirley
v. Precision Castparts Corp., 726 F.3d 675, 678 (5th Cir. 2013) (quoting definition). However, it
goes on to define a cognizable disability not in the conjunctive, as Defendant believes, but in the
disjunctive, deeming a person statutorily disabled if he or she has “(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) . . . [is] regarded as having such an impairment (as
described in paragraph (3)).” 42 U.S.C. § 12102(1) (emphasis added); Henson v . Bell Helicopter
Textron, Inc., 128 F. App’x 387, 391 (5th Cir. 2005) (citing definition). Grammatically and
linguistically, then, Defendant is wrong when it argues that Plaintiff must have an impairment, a
record of that impairment, and be regarded as having such an impairment to qualify as disabled
for the ADA’s purposes. (Doc. 51-2 at 2.) Rather, because the statute employs the customarily
disjunctive “or,” United States v. Woods, 134 S. Ct. 557, 567, 187 L. Ed. 2d 472 (2013), a
showing of any one of those elements—an impairment, a record, or “being regarded as having an
impairment”—will be sufficient to satisfy the ADA’s disability denotation as a matter of law,
Rodriguez v. ConAgra Grocery Prods. Co., 436 F.3d 468, 475 (5th Cir. 2006); accord, e.g.,
Walsh v. Bank of Am., 320 F. App’x 131, 132–33 (3d Cir. 2009); Cole v. Uni-Marts, Inc., 88 F.
Supp. 2d 67, 74 (W.D.N.Y. 1999). Allowing a plaintiff to meet the statutory meaning in the
absence of a medically confirmed disability, this approach well reflects and accurately embodies

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Congress’ intent: “[T]he establishment of coverage under the ADA should not be overly
complex nor difficult,” and the ADA is “expect[ed] . . . [to] lessen the standard of establishing
whether an individual has a disability for purposes of coverage under the ADA.” H.R. REP. NO.
110-730, at 9 (2008);7 see also Chevron U.S.A. v. Echazabal, 536 U.S. 73, 85 n.5, 122 S. Ct.
2045, 2052 n.5, 153 L. Ed. 2d 82 (2002) (discussing ADA’s legislative history).
The ADA’s three discrete and equally valid definitions of disability compel a particular
application of Rule 56 in this case of disability discrimination: Plaintiff’s case can withstand
summary judgment, for Plaintiff can ultimately win, so long as the evidence that cannot be
disbelieved does not definitively preclude her from later demonstrating that Defendant regarded
her as disabled and acted upon this perception, whether or not her disability is “actual or
perceived” or “whether or not the impairment limits or is perceived to limit a major life activity.”
42 U.S.C. § 12102(3)(A); Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 805 (5th Cir. 1997)
(observing that a plaintiff need only meet one of the ADA’s three three statutory definitions of
disability to be deemed “disabled”); see also Smothers v. Solvay Chems., Inc., 740 F.3d 530, 544
(10th Cir. 2014) (same). If the Plaintiff opts for this third route, even an empty record and an
absence of diagnosable disability cannot doom her ADA case; she will need only demonstrate
that the Defendant perceived her alleged (and even if later disproven) disability as an
“impairment.” See Bank v. Hit or Miss, Inc., 946 F. Supp. 569, 571 n.1 (N.D. Ill. 1996) (so
concluding in spite of plaintiff’s “unartful pleading,” though in accordance with Rule 12(b)).8

7

Though often disparaged, such history can be useful when it corroborates textual inferences or
is unambiguous and specific. See, e.g., Johnson v. Home State Bank, 501 U.S. 78, 86–87, 111 S.
Ct. 2150, 2155, 115 L. Ed. 2d 66 (1991); McDow v. Smith, 295 B.R. 69, 78 n.18 (E.D. Va.
2003).
8

While it is not dispositive, the legislative history explains § 12102(1)’s third prong in words
that support this construction: “[I]f an employer refuses to hire [or retain] someone . . . because
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Based on this statutory subsection, Defendant’s MSJ cannot be granted. Rather clearly,
Defendant ignores the fact that Plaintiff need not actually be disabled to win at trial. Instead,
under the ADA, she need only show Defendant thought she may be so afflicted and terminated
her without attempting any reasonable accommodation for that reason. See 42 U.S.C. §
12102(1)(C); Baker v. Windsor Republic Doors, 414 F. App’x 764, 772 (6th Cir. 2011). On this
score, the record can still be reasonably construed in Plaintiff’s favor. As Defendant itself
admits, its officials demanded Plaintiff see a neurologist and refused to return her to work until a
doctor cleared her return; they thus treated Plaintiff as though she was, in fact, disabled by virtue
of an epileptic condition, a condition necessitating a doctor’s permission before she could again
work. (Doc. 51-1 at 17–19.) Otherwise, no need for medical clearance of any kind would have
been so necessary, nor would have its absence have proved so fatal. (See id. at 18.) Indeed,
Defendant fired Plaintiff only when its chosen neurologist refused to provide clearance for her
ability to wield a weapon, thereby impliedly crediting her as disabled by an epileptic disorder.
Even if this inference is debatable, it is nonetheless reasonable. As such, these bare facts,
undisputed by Defendant, could support a reasonable finding of disability regardless of how
ambiguous Plaintiff’s medical records appear to be. With this possibility, neither fanciful nor
conjectural, Plaintiff’s complaint can withstand the MSJ due in part to Defendant’s construction
of § 12102(1).
A second reason, more technical, bolsters this conclusion. In the MSJ, Defendant insists
that Plaintiff must “prove” a disability” in order to have a claim under the ADA and that she has
so far failed to prove the existence of her epilepsy. (Doc. 51-1 at 2.) In so arguing, Defendant
confuses the distinction between the making of a prima facie case, as Plaintiff certainly must do,
of the employer’s perception that the applicant had a disability which prevented the person from
working, that person would be covered under the third prong.” S. REP. NO. 101-116, at 24.
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and the proving of such a case, which Plaintiff need not yet do. See Donald & Pardue, supra, at
762–63. To achieve the former, the record must contain some credible evidence of each requisite
element; this standard is designed to weed out truly spurious cases. The record, however, need
not “prove” the matter, as the making of a prima facie case is intended to trigger a proceeding,
i.e. a trial, intended to test, i.e. prove, the evidence’s veracity and cogency. In fact, if Plaintiff
had proven each element of her ADA claim, she, not the Defendant, would presently be entitled
to summary judgment, and this Court could just proceed to analyze the extent to which
Defendant terminated Plaintiff for a legitimate reason, a distinct inquiry, see supra Part IV.A.2.
At this point, Plaintiff is not compelled to “prove” anything, only to advance enough evidence to
leave her argument viable based on a reasonable construction of the existing evidence. As shown
above, Defendant inadvertently did this for her, at least in regards to one of the three definitions
of disability set out in the ADA.

2.

Inconsistencies in Defendant’s Account

In its every filing, Defendant asserts that no evidence exists that Plaintiff suffers from an
actual disability. (Doc. 33, 42.) It cites to doctors and records, claiming none could possibly
support Plaintiff’s version, and concludes only two bits of evidence—Plaintiff’s own words and
her mother’s attestations—buttress her weak case. Yet, in actuality, Defendant overlooks certain
facts and discrepancies in the record that leave many questions of critical material fact
unresolved.
While Gladney “specifically testified that . . . [Plaintiff] does not have a disabling
condition of epilepsy/seizures” at his deposition, (Doc. 51-1 at 3; see also, e.g., Doc. 110 at 1;
Doc. 114 at 4), the MSJ reveals other facts that cast into doubt this very testimony. For example,

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during this deposition, upon reviewing several of Plaintiff’s hospitalization records, Gladney did
no more than say “I didn’t hear anything that sounds like a seizure at all” and “sounds more like
a history of syncope”; he later clarified, “I would lean – I could see how this could be a
prolonged syncopal spell.” (Doc. 51-1 at 11, 13.) Gladney’s conclusion, which Defendant
emphasizes again and again, is thus generally coached in the most tentative of terms (“sounds
like,” “I would lean,” etc.). Indeed, at another point during his deposition, he even admitted, “So
many times it can be difficult and very complicated to separate” syncope from epilepsy, and
answered, “I would have no idea,” in respond to counsels’ query, “[W]ould Dr. Craig’s opinion
that she just had these two fainting spells be a realistic diagnosis?” (Doc. 51-6 at 11, 21.) And
when asked to comment about the import of Plaintiff’s sworn oath that she had never
“experienced any loss of consciousness under normal sleep,” he refused to accede to Defendant’s
insistent question, “So that doesn’t indicate she has had seizures or any type of problems, does
it?” (Id. at 24, 34–35.) Compounding this testimony’s ambiguity, he further explained that he
would regard Plaintiff as not disabled due to her apparently viable and successful treatment
regimen, not due to her absence of the underlying condition. (Id. at 24, 34–35.) Certainly, it is
hard to see how Gladney’s hesitant and often equivocal language “completely disproves
[P]laintiff’s allegation that she has a disability in the form of epilepsy,” as Defendant insists.
(Doc 51-1 at 11.)
In addition, Gladney actually refused to take a position on the issue before the Court:
“Well, even if she had seizures, which I am beginning to doubt that she does . . . .” (Id. at 14
(emphasis added).) True, Dr. Gladney did not testify that Plaintiff has seizures; true, he now
doubts whether she has epilepsy. (Doc. 51-1 at 13; see also Doc. 51-6.) But, as these excerpts
show, Gladney is not the unalloyed proponent Defendant describes. Unwilling to take a firm

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stand, Gladney has proffered no evidence that, by indisputably establishing Plaintiff’s nondisability, would render the existence of a genuine dispute a legal impossibility.
Gladney’s testimony, moreover, is seemingly contradicted by his own treatment records.
Quite clearly, Gladney did see Plaintiff, and he did in fact prescribe anti-seizure medication for
Plaintiff’s use, believing her to suffer from such a paralyzing condition. (Doc. 51-1 at 9–10.) In
admitting to this history, he even made a point of emphasizing how “not helpful” ER notes tend
to be in alleged seizure cases. (Doc. 51-6 at 32.) At the very least, regardless of the weight of his
own ambiguous statements, this fact raises issues of fact as to Plaintiff’s condition and this
witness’ credibility. To wit, considering the indisputable fact that the tentative Dr. Gladney has
offered two contradictory medical opinions about the same patient, a jury would not be required
to believe his sworn testimony.
Equally damaging to Defendant’s MSJ under Rule 56, Craig’s testimony can be similarly
challenged. Like Gladney, Craig now regards Plaintiff as having suffered a number of fainting
spells but never epilepsy. (Doc. 51-1 at 15.) However, on prior occasions, Craig had diagnosed
Plaintiff as suffering from “possible epilepsy,” a conclusion he now insists “was not . . .
diagnosis by him or his nurse.” (Id.) Additionally, on March 6, 2014, he submitted an affidavit in
which, in Defendant’s words, he “state[s] that in his opinion Ariza suffers from a seizure
disorder and it is under control,” an affidavit he later insisted reflected Plaintiff’s self-crafted
history alone (Id. at 16.) Echoing Dr. Gladney, Dr. Craig conceded that he did not know whether
Plaintiff “has epilepsy or not from . . . [his] personal treatment of her.” (Id. at 17.) Incompatible,
these varying views raise questions of fact and issues of credibility best left to a jury’s
deliberations.

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3.

Plaintiff’s Bare Minimum

Finally, Plaintiff has alleged enough to survive the MSJ. If believed, her own testimony
and her mother’s testimony do attest to her epileptic state. Regardless of her doctors’ present
positions, as the MSJ inconsistently admits and as her pharmacy record divulge, Plaintiff did
receive several prescriptions for anti-seizure medication.9 (Id. at 10; see also Doc. 51-7 at 2.)
Clear and uncontroverted, offered by Defendant, this one record can and does “support[]
plaintiff’s claim of a disability in the form of epilepsy,” a record created by Gladney’s then
confident, now doubtful, diagnosis. (Doc. 51-1 at 12.) Even if scanty, such medical records can
satisfy Plaintiff’s burden at this stage. See EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d
1184, 1197 (10th Cir. 2000). Relatedly, Gladney’s references to seizure activity in Plaintiff’s
newly questioned files as well as Craig’s former diagnosis of epilepsy and the affidavit he
executed on March 5, 2014, could support a similar finding. To Defendant, only these doctors’
newly considered opinions matter, but a factfinder is not compelled to credit these thoughts and
set aside other indicia by these same persons that Plaintiff did indeed suffer from some type of
seizure condition. By any reasonable measure, there is enough evidence in the record to justify
denying the present motion.
Furthermore, the fact that Defendant provided two different jobs descriptions of
Plaintiff’s position could nurture a jury’s reasonable suspicions. Plaintiff’s possible seizures
seemingly render her unfit if one description is accepted, but her seizures would prove no hurdle
if the other is applied. (Doc. 54 at 199, 103–04.) Even if “[i]t would not be a reasonable
accommodation to require the employer to eliminate essential job functions, modify job duties,
9

Further undercutting his credibility, Gladney was “surprised” when Plaintiff admitted to not
taking her prescribed medication. (Doc. 51-1 at 10.) To this Court, it does not seem likely that a
doctor truly unconvinced of a patient’s disability would be so surprised by her failure to take
inessential medication or fail to note his suspicions in a patient’s written record.
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reassign existing employees, or hire new employees,” Burch v. City of Nacogdoches, 174 F.3d
615, 621 (5th Cir. 1999), the discrepancy could lead a jury to believe the gun-holding
requirement upon which Defendant rested its termination decision amounts to mere subterfuge, a
verboten pretext, Chevron Phillips, 570 F.3d at 615. Support for such a conclusion could be
found in the fact that Defendant specifically delayed terminating Plaintiff until Dr. Moore made
his final decision, one based on the second description proffered by Defendant’s employees.
Furthermore, because “[a]n employer violates the ADA when its unwillingness to engage in a
good faith interactive process leads to a failure to reasonably accommodate an employee,” it is
unclear whether Defendant chose to ignore Plaintiff’s return-to-work notes, as Plaintiff asserts,
or whether “the breakdown in the interactive process . . . [was] traceable” to Plaintiff’s apparent
intransigence, as Defendant contends. Toronka v. Cont’l Airlines, Inc., 411 F. App’x 719,
726 (5th Cir. 2011). Finally, Defendant never answers Plaintiff’s retort: that, since three
employees work at the vault at any single point in time and only two of three must carry a
weapon, Defendant could have allowed Plaintiff not to wear one. (Doc. 54 at 24–25.) Even if
not, so as to prove its compliance with the ADA, Defendant would need to show, for example,
that Plaintiff’s supervisors met with her multiple times to discuss available positions for which
she met the minimum requirements based on her resume, Toronka, 411 F. App’x at 726, or that
she was ineligible for a restructured position or a vacant posting, see 42 U.S.C. § 12111(9).
However persuasive they may later strike a jury, answers to each of these questions remain
outstanding, raising issues of fact and precluding summary judgment.

V.

CONCLUSION
Rule 56 forbids this Court from considering the ultimate weight of the evidence so long

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as some supporting the movant and nonmovant can be discerned. When the MSJ, Defendant’s
Proposed Memorandum, and Defendant’s Reply are stripped of their argumentative language and
the factual issues are laid bare, it is clear that the MSJ lacks merit. Accordingly, this Court
DENIES Defendant’s MSJ.
Signed in Baton Rouge, Louisiana, on September 23, 2015.

S

JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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