Jackson v. Southwestern Electric Power Co et al

Filing 51

MEMORANDUM RULING granting 23 Motion for Summary Judgment. Signed by Judge S Maurice Hicks on 05/20/2014. (crt,McDonnell, D)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
RICHARD L. JACKSON

CIVIL ACTION NO. 12-CV-2064

VERSUS

JUDGE S. MAURICE HICKS, JR.

AMERICAN ELECTRIC POWER

MAGISTRATE JUDGE
HORNSBY

COMPANY, INC., ET AL.
MEMORANDUM RULING
Before the Court is a Motion for Summary Judgment filed by Defendants, American
Electric Power Company, Inc. (“AEP”) and Southwestern Electric Power Company
(“SWEPCO”) (hereafter collectively referred to as “AEP/SWEPCO” or “Defendants”),
pursuant to Federal Rule of Civil Procedure 56. For the reasons that follow, the Motion for
Summary Judgment is GRANTED.
BACKGROUND
Plaintiff, Richard Jackson is an African American male who began working for
SWEPCO on April 2, 2001 as a Relay Technician, maintaining relays in electric utility
substations. (SOF, ¶ 2). Jackson later took a position as a Substation Electrician
maintaining electric utility substations. (SOF, ¶ 3). Before and during his employment with
SWEPCO, Jackson was a member of the International Brotherhood of Electrical Workers
(“IBEW”), Local 329. (SOF, ¶ 5). As a member fo the IBEW, Jackson was entitled to the
benefits of the Collective Bargaining Agreement (“CBA”). This provided him with the right
to file grievances as to any employment-related issue and to pursue such grievances
through arbitration if necessary. (SOF, ¶ 6).
On March 22, 2007, while working on the North 345 Transformer in the Longwood

Substation, Jackson stepped on a section of the wire that broke and gave way, causing him
to fall approximately five feet before landing on his feet. (SOF, ¶ 9). Jackson did not request
medical attention at that time. Rather, for nearly five months, he continued to work as a
Substation Electrician until reporting the incident and the claimed subsequent injury on
August 6, 2007. (SOF, ¶ 11).
On October 15, 2007, Jackson informed SWEPCO that he was unable to continue
working due to the injury. (SOF, ¶ 13). Thereafter, Jackson sought and received sick pay
pursuant to SWEPCO’s policy, for six months. (SOF, ¶ 14). Following his six months of sick
pay, Jackson sought and received Long Term Disability Benefits under SWEPCO’s Long
Term Disability Plan (“LTD”). (SOF, ¶ 16). Under the LTD Plan, coverage is provided for
the first 24 months based upon a disability defined as “an illness or injury that requires the
regular treatment of a duly qualified physician and that may reasonably be expected to
prevent you from performing the material duties of your occupation with AEP.” (SOF, ¶
18). After the first 24 months, the definition of “disability” changes under the LTD Plan and
is then defined as “an illness or injury that requires the regular treatment of a duly qualified
physician and that may reasonably be expected to prevent you from performing the duties
of any occupation for which you are reasonably qualified by your education, training and
experience.” (SOF, ¶ 21). (Emphasis in the original).
On July 17, 2009, Jackson was informed via letter from Prudential, the third party
administrator of the Plan, that he would be denied further benefits as of October 15, 2009
as it had determined that he was not disabled under the “any occupation” definition of
disability as he could engage in some form of gainful employment. This was in accordance

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with the change in the definition of “disability” under the policy.
Following receipt of the notification from Prudential, Jackson retained Counsel to
appeal Prudential’s decision, asserting that Jackson was disabled from performing any
occupation. (SOF, ¶ 26).Prudential again denied the appeal in a letter dated April 23, 2010.
(SOF, ¶ 28). Jackson subsequently filed suit against Prudential in this Court. The suit was
dismissed under LR 41.3 because service of the summons and complaint was not made
within 120 days of the institution of the civil action and Plaintiff failed to show good cause
for the deficiency. (SOF, ¶ 29 and 5:11-cv-0393 Rec. Doc. 12).
On or about August 2007, Jackson also filed a Louisiana workers’ compensation
claim seeking workers’ compensation benefits from SWEPCO. The claims were ultimately
settled in two parts: (1) wage benefits on June 7, 2011 and (2) the medical portion on
November 21, 2013. (SOF, ¶ 30, 31, 34). Plaintiff also filed for Social Security Disability
Benefits, first in 2008, and again in 2011 after his initial application was denied. Jackson
has continually made sworn personal declarations, under penalty of perjury, that he is
totally disabled and unable to work before the Social Security Administration. (SOF, ¶ 37,
38, 41).
Jackson also filed an untimely charge with the Equal Employment Opportunity
Commission (“EEOC”) on April 6, 2011, alleging discrimination based on race, retaliation
and age on October 26, 2009. (SOF, ¶ 42). The charge was considered by the EEOC,
which stated in correspondence to Robert G. Cohn, Senior Counsel of Labor and
Employment for AEP/SWEPCO, that the “Commission concurs with your argument that the
Charging Party did not engage in a protected activity and therefore was not subjected to
retaliation.” (SOF, ¶ 44). The EEOC further issued notice to Jackson that “[y]ou alleged that
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you were subject to unequal terms and conditions, suspended and discharged based on
your disability, age and retaliation. The evidence does not support your allegations.” (SOF,
¶ 47). Despite this statement from the EEOC, Jackson filed this suit on July 31, 2012
asserting race and disability discrimination. (SOF, ¶ 48). Subsequently, he filed a Second
Amended Complaint merely listing a number of statutes that apparently he asserts were
violated by SWEPCO. (SOF, ¶ 51).
LAW AND ANALYSIS
A. Summary Judgment Standard
Summary judgment is proper pursuant to Rule 56 of the Federal Rules of Civil
Procedure when “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.”1 Quality Infusion Care, Inc. v. Health Care Serv.
Corp., 628 F.3d 725, 728 (5th Cir. 2010). “Rule 56[(a)] mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an element essential to that party's
case, and on which that party will bear the burden of proof at trial.” Patrick v. Ridge, 394
F.3d 311, 315 (5th Cir.2004). If the movant demonstrates the absence of a genuine
dispute of material fact, “the nonmovant must go beyond the pleadings and designate
specific facts showing that there is a genuine issue for trial.” Gen. Universal Sys., Inc. v.
Lee, 379 F.3d 131, 141 (5th Cir.2004). Where critical evidence is so weak or tenuous on
an essential fact that it could not support a judgment in favor of the nonmovant, then

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The Court notes that the newly amended Rule 56 requires that there be “no genuine
dispute as to any material fact,” but this change does not alter the Court’s analysis. F.R.C.P.
56(a) and advisory committee’s note (emphasis added).
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summary judgment should be granted. See Boudreaux v. Swift Transp. Co., 402 F.3d 536,
540 (5th Cir.2005).
B. Analysis
1. Discrimination and / or Retaliation Claim
Jackson’s first claim against the Defendants is for discrimination and/or retaliation
due to his race. Employers are prohibited from discriminating “against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of
such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).
A claim for discrimination may be proven with direct or circumstantial evidence. Nasti v.
CIBA Specialty Chemicals Corp., 492 F.3d 589,593 (5th Cir. 2007). If a Plaintiff lacks direct
evidence to prove such a claim, courts are to implement a burden shifting analysis as
established under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817
(1973); Nasti v. CIBA Specialty Chemicals Corp., 492 F.3d at 593. Because Jackson has
not provided this Court with any direct evidence of discrimination, analysis under the
McDonnell Douglas framework is appropriate. The Fifth Circuit has explained this
framework as follows:
Under the McDonnell Douglas framework, a plaintiff must first
establish a prima facie case of...discrimination. The employer
then bears the burden of producing a legitimate,
non-discriminatory reason for its actions. The employer is not
required to convince the Court that it was actually motivated by
this reason; it need only raise a genuine issue of fact as to
whether or not it discriminated against the plaintiff. Once the
employer offers a legitimate, nondiscriminatory reason for the
plaintiff's treatment, the presumptions of the McDonnell
Douglas framework dissipate, and the plaintiff bears the
ultimate burden of persuading the trier of fact that the
defendant engaged in intentional discrimination. To satisfy this
burden, a plaintiff must produce substantial evidence that the
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employer's proffered reasons for its actions were a pretext for
discrimination. A plaintiff can establish pretext either through
evidence of disparate treatment or by showing that the
employer's proffered explanation is false or ‘unworthy of
credence.’
Nasti, 492 F.3d at 593 (Internal citations omitted).
Accordingly, Jackson must first establish a prima facie case of discriminatory
discharge by showing that: (1) he belongs to a protected class, (2) he was qualified for his
position, (3) he suffered an adverse employment action, and (4) similarly situated
employees were treated more favorably. See Id.
Similarly, in order to succeed on his retaliation claim, Jackson must prove that: (1)
he engaged in an activity protected by Title VII, (2) an adverse employment action
occurred, and (3) a causal link existed between the protected activity and the adverse
employment action. Long v. Eastfield Coll., 88 F.3d 300, 304 (5th Cir. 1996). Regardless
of whether Plaintiff’s evidence is direct or circumstantial, he bears the burden of proving
that the adverse employment decision was because of race or protected activity. Jenkins
v. State of La. Through Dep’t of Corrs., 874 F.2d 992, 997 (5th Cir. 1989), cert. denied, 493
U.S. 1059 (1990). In a recent Title VII opinion regarding retaliation claims, the Supreme
Court held that a plaintiff must prove that “but for” the protected activity, the adverse
employment decision would not have occurred. University of Texas Southwestern Medical
Center v. Nassar, 133 S. Ct. 2517, 2528 (2013). Therefore, Jackson must establish that
“but for” the alleged protected activity, no adverse employment action would have occurred.
Only if and when a plaintiff successfully establishes a prima facie case does a
defendant become obligated to produce evidence of a legitimate, non-discriminatory reason
for the employment action. Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir.
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2002). Once the employer provides a legitimate, non-discriminatory reason, the burden
shifts back to the employee to demonstrate that the employer’s explanation is pretextual
and “unworthy of credence.” Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 259 (5th Cir.
2009).
In the instant matter, Jackson failed to provide any evidence that he engaged in any
protected activity whatsoever, much less that it was the “but for” cause of any adverse
employment action. Plaintiff did not file a charge with the EEOC until April 6, 2011, which
was after his termination from AEP/SWEPCO. (SOF, ¶ 42). Further, Jackson’s opposition
to the Motion for Summary Judgment fails to provide any evidence, or even a statement
regarding any of the issues raised by the defendants in their Motion for Summary
Judgment. Rather, Jackson’s opposition to the Motion for Summary Judgment consists of
rambling, often incoherent and generally irrelevant statements regarding standing and
mootness, neither of which were raised by the Defendants in their Motion for Summary
Judgment.
Therefore, the Court finds that the Plaintiff has failed to establish a prima facie case
of race discrimination or retaliation; therefore, Defendants are entitled to Summary
Judgment on Plaintiff’s Discrimination and Retaliation claims.
2. Disability Discrimination Claim
Jackson’s next claim is that Defendants discriminated against him due to a disability.
To establish a prima facie case of discrimination under the Americans with Disabilities Act
as amended (ADAAA) (42 USC §12112), a plaintiff must show that: (1) he has a disability;
(2) he was otherwise qualified for the job; and (3) an adverse employment decision was
made because of his disability. See Talk v. Delta Airlines, Inc., 165 F.3d 1021, 1024 (5th
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Cir. 1999); see also Rodriguez v. ConAgra Grocery Prods. Co., 436 F.3d 468, 474 (5th Cir.
2000).
In the instant matter, Jackson made various, contradicting statements regarding
whether or not he was able to perform his job. In his Statement of Facts, Jackson alleges
that he is disabled, but that he could have returned to work with “reasonable
accommodations.” (SOF, ¶ 49). However, he made a sworn statement to SWEPCO’s
disability insurer and to the Louisiana Department of Labor Office of Workers’
Compensation stating that he could not perform any occupation and that his physical and
mental capacity were impaired. He also reported that working would “endanger [his] life as
well as those of [his] coworkers and the public.” (SOF, ¶ 24,30). Jackson made similar
statements regarding his inability to work to the Social Security Administration. (SOF, ¶ 41).
The Fifth Circuit has upheld summary judgment in favor of the employer when
Plaintiff asserts contradictory positions in ADA litigation. See Holtzclaw, 255 F.3d 254;
Reed v. Petroleum Helicopters, Inc., 218 F.3d 477 (5th Cir. 2000). In Holtzclaw, the Court
found that the Plaintiff did not offer a sufficient explanation for the contradictions in his
stories. Hotzclaw at 259. In Reed, the Court affirmed the granting of summary judgment
against the Plaintiff in an ADAAA claim where the statements made by Plaintiff were
fundamentally inconsistent with her ability to perform her job. See Reed at 480.
Jackson simply cannot have it both ways – he is either fully disabled or able to work
with accommodations. Therefore, this Court finds that Jackson has failed to establish a
prima facie case for discrimination based on the ADAAA. Additionally, even if Jackson
could establish that he qualifies under the ADAAA, he cannot show that his termination was
pretexual. The glaring inconsistences in Jackson’s story provide a legitimate, non8

discriminatory basis for the termination.
3. Miscellaneous Claims
Jackson makes additional, miscellaneous claims in his Second Amended Complaint,
in which he lists several statutes and laws, including the Family and Medical Leave Act,
Age Discrimination in Employment Act, and various state law claims, suggesting that he
has a claim under each. The Court finds that Jackson failed to sufficiently plead any of
these claimed violations. See Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 550 U.S.
544, 167 L.Ed.2d 929 (2007). Additionally, Jackson failed to address any of these claims
in his opposition to the Motion for Summary Judgment, and therefore, he is deemed to
have conceded these claims.
CONCLUSION
Based on the foregoing analysis, the Court finds that Plaintiff Richard L. Jackson
failed to provide sufficient competent summary judgment evidence to raise a dispute of
material fact that he endured discrimination and/or retaliation under the framework provided
by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Jackson has also failed to provide sufficient competent summary judgment
evidence to raise a dispute of material fact that he endured discrimination based on his
claimed disability. Additionally, Jackson concedes his various claims listed in the Second
Amended Complaint because these fail to meet the Twombly requirements and because
Plaintiff failed to address them in his opposition to the Motion for Summary Judgment filed
by the Defendants.
Accordingly, IT IS ORDERED THAT the foregoing motion filed by Defendants
AEP/SWEPCO (Record Document 33) be and is hereby GRANTED.
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All of Plaintiff’s

claims are DISMISSED WITH PREJUDICE.
A Judgment consistent with the terms of the instant Memorandum Ruling shall issue
herewith.
Thus done and signed, in Shreveport, Louisiana, this 20th day of May, 2014.

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