Pisani v. Conrad Industries Inc

Filing 47

MEMORANDUM RULING re 29 MOTION for Summary Judgment filed by Conrad Industries Inc. Considering the evidence, the law, and the arguments of the parties, and for the reasons fully explained herein, the motion is DENIED. Signed by Magistrate Judge Patrick J Hanna on 2/1/2018. (crt,Alexander, E)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
THAYER A. PISANI

CIVIL ACTION NO. 6:17-cv-00393

VERSUS

MAGISTRATE JUDGE HANNA

CONRAD INDUSTRIES, INC.

BY CONSENT OF THE PARTIES

MEMORANDUM RULING
Currently pending is the motion for summary judgment (Rec. Doc. 29), which
was filed by the defendant, Conrad Industries, Inc. The motion is opposed. Oral
argument was held on January 25, 2018. Considering the evidence, the law, and the
arguments of the parties, and for the reasons fully explained below, the motion is
DENIED.
BACKGROUND
In his complaint, the plaintiff asserted a claim under the Americans with
Disabilities Act and the Louisiana Employment Discrimination Law, contending that
he was discriminated against on the basis of a perceived disability when his employer
failed to allow him to return to work following a medical leave of absence.
The plaintiff, Thayer A. Pisani, was employed by the defendant, Conrad
Industries, Inc., as a crane operator. Mr. Pisani has a history of degenerative disc
disease in his spine. In 2006, this condition caused numbness in his arms and hands
as well as migraine headaches and resulted in his having surgery. After recovering

from the surgical procedure, Mr. Pisani returned to work. In October 2015, Mr.
Pisani began experiencing symptoms related to his cervical spine. He took a medical
leave of absence, during which he treated with a neurologist, Dr. Edward Haight.
When the leave period was scheduled to end, Mr. Pisani was still undergoing physical
therapy, and Conrad agreed to extend his leave to accommodate the ongoing physical
therapy. On January 15, 2016, Dr. Haight cleared Mr. Pisani to return to work
without restrictions. However, Conrad’s HR director Shane Alfred required that Mr.
Pisani also be cleared to return to work by the company doctor, Dr. Robert M.
Bourgeois who has a specialty in occupational medicine.
On January 18, 2016, Dr. Bourgeois declined to clear Mr. Pisani to return to
work but also indicated that further evaluation of Mr. Pisani’s condition was required,
and he requested additional medical records. On that same date, Dr. Adolpho Cuadra
of the Headache & Pain Center, cleared Mr. Pisani to return to work. On February
1, 2016, Conrad terminated Mr. Pisani’s employment. The next day, Conrad’s HR
director instructed Dr. Bourgeois to discontinue his review of Mr. Pisani’s records.
Thereafter, neurologist Dr. Damon E. Patterson also opined that Mr. Pisani was
capable of returning to work.
Conrad now seeks summary judgment in its favor, arguing that Mr. Pisani’s
ADA claim should be dismissed because Conrad had an objectively reasonable
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concern, at the time of Mr. Pisani’s termination, that Mr. Pisani would pose a direct
threat to its work force if he returned to work as a crane operator.
LAW AND ANALYSIS
A.

THE SUMMARY JUDGMENT STANDARD
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment

is appropriate when there is no genuine dispute as to any material fact, and the
moving party is entitled to judgment as a matter of law. A fact is material if proof of
its existence or nonexistence might affect the outcome of the lawsuit under the
applicable governing law.1 A genuine issue of material fact exists if a reasonable jury
could render a verdict for the nonmoving party.2
The party seeking summary judgment has the initial responsibility of informing
the court of the basis for its motion and identifying those parts of the record that
demonstrate the absence of genuine issues of material fact.3 If the moving party
carries its initial burden, the burden shifts to the nonmoving party to demonstrate the

1

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Sossamon v. Lone Star
State of Tex., 560 F.3d 316, 326 (5th Cir. 2009); Hamilton v. Segue Software, Inc., 232 F.3d 473, 477
(5th Cir. 2000).
2

Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. at 252); Hamilton v. Segue Software, Inc., 232 F.3d at 477.
3

Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir. 2007) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)).

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existence of a genuine issue of a material fact.4 All facts and inferences are construed
in the light most favorable to the nonmoving party.5
If the dispositive issue is one on which the nonmoving party will bear the
burden of proof at trial, the moving party may satisfy its burden by pointing out that
there is insufficient proof concerning an essential element of the nonmoving party's
claim.6 The motion should be granted if the nonmoving party cannot produce
evidence to support an essential element of its claim.7
B.

FACTUAL ISSUES PRECLUDE SUMMARY JUDGMENT
To establish a prima facie case of disability discrimination under the ADA, Mr.

Pisani must prove that he has a disability, that he is a qualified individual for the job
he seeks, and that an adverse employment decision was made because of his
disability.8 Conrad’s motion focuses on the second of these three elements. An
individual is qualified under the ADA if he can perform the essential functions of his

4

Washburn v. Harvey, 504 F.3d at 508.

5

Brumfield v. Hollins, 551 F.3d at 326 (citing Matsushita Elec. Indus. Co. v. Zenith
Radio, 475 U.S. 574, 587 (1986)).
6

Norwegian Bulk Transport A/S v. International Marine Terminals Partnership, 520
F.3d 409, 412 (5th Cir. 2008) (citing Celotex Corp. v. Catrett, 477 U.S. at 325).
7

Condrey v. Suntrust Bank of Ga., 431 F.3d 191, 197 (5th Cir. 2005).

8

E.E.O.C. v. LHC Group, Inc., 773 F.3d 688, 695 (5th Cir. 2014); Rizzo v. Children's
World Learning Centers, Inc., 84 F.3d 758, 763 (5th Cir. 1996).

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job with or without a reasonable accommodation.9 The qualification standard may
include a requirement that an individual not pose a direct threat to the health or safety
of other individuals in the workplace.10
Conrad asserted an affirmative defense, contending that Mr. Pisani was no
longer a qualified individual for the crane operator position when he attempted to
return to work at the end of his medical leave of absence. In particular, Mr. Alfred
told Mr. Pisani that he was concerned about the possibility of Mr. Pisani’s arms going
numb while he was on the job and interfering with his ability to properly and safely
operate the crane. (Rec. Doc. 29-3 at 49).
For purposes of the direct threat defense, the ADA requires employers to
conduct an individualized assessment of the employee's “present ability to safely
perform the essential functions of the job” “based on a reasonable medical
judgment.”11

One court articulated the applicable standard as follows:

“An

employer’s determination that a person cannot safely perform his job functions is
objectively reasonable when the employer relies upon a medical opinion that is itself

42 U.S.C. § 12111(8). See, also, Claiborne v. Recovery School District, 690 Fed.
App’x 249, 254 (5th Cir. 2017); Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1093 (5th Cir.
1996).
9

10

42 U.S.C. § 12113(b). See, also, Rizzo v. Children's World Learning Centers, Inc.,
213 F.3d 209, 218 (5th Cir. 2000).
11

29 C.F.R. § 1630.2(r).

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objectively reasonable.”12 The Fifth Circuit has explained that “[w]hether one is a
direct threat is a complicated, fact intensive determination, not a question of law. To
determine whether a particular individual performing a particular act poses a direct
risk to others is a matter for the trier of fact to determine after weighing all of the
evidence about the nature of the risk and the potential harm.”13
In this case, Conrad has not established that there was an objectively
reasonable medical opinion on which it relied in deciding that Mr. Pisani was a direct
threat and therefore could not return to work. Conrad claims that it relied on Dr.
Bourgeois’s opinion in deciding that Mr. Pisani’s return to work would constitute a
threat. But there is an unresolved factual issue concerning whether, at the time that
Mr. Alfred terminated Mr. Pisani’s employment, Dr. Bourgeois had actually reached
a conclusion concerning whether Mr. Pisani was capable of returning to work.
At Conrad’s request, Dr. Bourgeois started reviewing Mr. Pisani’s file on
January 18, 2016. (Rec. Doc. 37-1 at 36). On that same date, Dr. Bourgeois sent a
fax to Conrad in which he indicated that he was unable to clear Mr. Pisani to return
to work but also indicated that his opinion in that regard was deferred pending further
evaluation. (Rec. Doc. 37-1 at 2). He requested additional records from Mr. Pisani’s

12

Michael v. City of Troy Police Dep’t, 808 F.3d 304, 307 (6th Cir. 2015).

13

Rizzo v. Children's World Learning Centers, Inc., 84 F.3d at 764.

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personal medical doctors, including a list of all medications he was using and any
records regarding treatment for pain management. (Rec. Doc. 37-1 at 2, 36). The
ambiguity in that fax transmission is sufficient to create an issue as to Dr. Bourgeois’s
evaluation of Mr. Pisani’s fitness for work as a crane operator, but there is more. Dr.
Bourgeois did not examine Mr. Pisani (Rec. Doc. 37-1 at 36, 39), and he did not
consult with Mr. Pisani’s treating neurologist (Rec. Doc. 37-1 at 39). He received
additional medical records on February 1, 2016 and began a second document review
the next day, February 2, 2016. (Rec. Doc. 37-1 at 36, 38). On that same date,
however, Mr. Alfred instructed Dr. Bourgeois to discontinue his review of Mr.
Pisani’s medical records (Rec. Doc. 37-1 at 38) because Mr. Alfred had already
terminated Mr. Pisani’s employment the day before (Rec. Doc. 37-1 at 4). Therefore,
Dr. Bourgeois stated in his deposition that he did not prepare a final assessment
concerning Mr. Pisani’s ability to return to work. (Rec. Doc. 37-1 at 38). Mr. Alfred
insisted, in his deposition testimony, that he would defer to Dr. Bourgeois with regard
to the medical opinion as to whether Mr. Pisani could return to work (Rec. Doc. 37-1
at 29), but Mr. Alfred made the decision to terminate Mr. Pisani’s employment before
Dr. Bourgeois finished his review of Mr. Pisani’s medical records and without
obtaining a final evaluation by Dr. Bourgeois of Mr. Pisani’s ability to work as a
crane operator. There is a genuinely disputed factual issue concerning whether Dr.
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Bourgeois’s statement on January 18, 2016 that he was “Unable to Clear [Mr. Pisani]
for Position” was an objectively reasonable medical opinion that Mr. Pisani was not
qualified to be a crane operator when the same document also indicated that Dr.
Bourgeois’s opinion in that regard was “Deferred (Requires Further Evaluation).”
Having failed to establish the existence of an objectively reasonable medical opinion,
Conrad has not proven that its determination that Mr. Pisani could not safely perform
his job functions was itself objectively reasonable.
Conrad has not established that there are no genuinely disputed facts relevant
to its contention that Mr. Pisani was a direct threat to himself or his coworkers.
Therefore, Conrad is not entitled to summary judgment in its favor on its direct threat
defense. This issue should be submitted to the jury following trial on the merits.
CONCLUSION
For the foregoing reasons, defendant Conrad Industries, Inc.’s motion for
summary judgment (Rec. Doc. 29) is DENIED.
Signed at Lafayette, Louisiana on this 1st day of February 2018.

____________________________________
PATRICK J. HANNA
UNITED STATES MAGISTRATE JUDGE

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