Head v. City of Columbus Light and Water Department

Filing 46

MEMORANDUM OPINION re 45 Order on Motion for Summary Judgment. Signed by District Judge Sharion Aycock on 9/12/2017. (dbm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
WILLARD HEAD

PLAINTIFF

V.

CIVIL ACTION NO. 1:16-CV-77-SA-DAS

CITY OF COLUMBUS
LIGHT AND WATER DEPARTMENT

DEFENDANT

MEMORANDUM OPINION
Willard Head filed his Complaint [1] in this Court on May 9, 2016 alleging that his
former employer, the City of Columbus, Mississippi Light and Water Department wrongly fired
him because of his age and physical disability. Head seeks relief under the Age Discrimination in
Employment Act, 29 U.S.C. § 621, et seq., and the Americans with Disabilities Act, 42 U.S.C. §
12101, et seq. Now before the Court is the Department’s Motion for Summary Judgment [35] on
all claims. Head filed a Response [40] and the Department filed a Reply [43] making this issue
ripe for review.
Factual and Procedural Background
Head was involved in an automobile accident in 1992 while driving a truck for his then
employer, Hardin’s Bakery. Because of injuries sustained in the accident, Head had his right hip
replaced. Head was unable to continue in his job as a truck driver because of his injury, so he
sought re-education as a draftsperson at East Mississippi Community College. During his final
semester, Head’s instructor recommended him for a mapping position at the Columbus Light and
Water Department. Superintendent C.F. Williams hired Head, while still a student, for the
mapping position in June of 1995. Head’s employment application from 1995 notes “a physical
defect which precludes him from performing certain kinds of work.” Specifically, Head noted on
his application “hip replacement, no heavy lifting.”

Head’s primary job responsibility was to update and maintain the Department’s
computerized master map of the electrical system including lines, poles, and other devices. Head
received “staking sheets,” mostly technical drawings, from his supervisor Chief Engineer Rusty
Jaudon with changes. Head took the information from the staking sheets and used it to update the
master map. Head received training on mapping, especially early on. Occasionally, Head would
go out into the field to collect GPS location data on electrical poles or equipment for mapping
purposes. The Department also trained Head as a dispatcher.
Although Head and Jaudon shared an office space in the Department’s electrical
warehouse for almost nineteen years, Head had personal issues with Jaudon. Head thought
Jaudon had unrealistic expectations, that he treated everyone at the Department unfairly, and was
generally a poor manager. In particular, Head complained about Jaudon’s poor personal hygiene
and strong offensive body odor. It was no secret that Head and Jaudon had a tense relationship.
According to Superintendent Williams, Head was a generally a good employee but over
the years he started to lose focus. Jaudon also tasked Head with some additional responsibilities
over the years. On at least one occasion, Jaudon sent Head out with a crew to clear some trees
after a storm, Head sometimes covered the warehouse when the warehouse personnel were on
break, and Head often covered dispatch when the regular dispatcher was out or at lunch. Head
complained to Williams that doing physical labor like dragging brush was painful and difficult
for him with his artificial hip.
Head was also tasked with managing the Department’s security light program. Customers
that wanted to have an overhead security light installed at their property would contact the
Department and Head would go out to meet the customer, determine the best location for the
security light, and get the customer to sign a contract. Head did not like having these additional

2

tasks and responsibilities. In his opinion, he was hired to do mapping and these other tasks were
distractions that took him away from his main responsibility.
In 2009, Head’s job description was updated to the following:
_______________________________________________________________
Job Description
Job Title:
Area:
Pay Grade:
Reports To:

Engineering Assistant
Electrical Division
5
Chief Engineer

Job Summary: To assist in the performance of routine, engineering duties in accordance
with well established procedures and to perform related field works as required.
Essential Functions:
1.
Collect data and prepare documents as instructed.
2.
Read maps and blueprints.
3.
Prepare work orders.
4.
Maintain computerized records.
5.
Make simple measurements and recordings.
6.
Maintain good public relations and work to enhance the image of the CL&W.
7.
Operate utility vehicle as assigned.
8.
Use drafting and survey tools and equipment.
9.
Operate various computer terminals.
10.
Perform other duties as assigned by supervisor.
Educational Requirements: Minimum of high school diploma, GED or equivalent.
College level algebra and geometry desirable.
Job Requirements
1.
Must have and maintain a valid Mississippi Driver’s License.
2.
Must be able to add, subtract, multiply, and divide all units of measure.
3.
Should have basic working knowledge of electric utility operations and practices.
4.
Must have ability to read maps.
5.
Must have ability to work with computers.
6.
Must be able to understand and follow written and oral instructions.
7.
Must be able to carry out routing job assignments and be able to implement
solutions for routine problems without the directions of the Supervisor and
accomplish all assignments without constant supervision.
8.
Must be able to maintain clear and concise records.
9.
Must be able to lift and carry 50 lbs.
10.
Must be able to work outdoors in differing weather conditions and temperature

3

11.
12.
13.

variations.
Must be able to stand, walk, sit, reach with hands and arms, climb, balance,
stoop, kneel, crouch, and crawl.
Must be able to work overtime and call back for emergencies and other periods
of time as needed.
Must be able to speak clearly and concisely and listen carefully.
Must have the ability to establish and maintain effective working relationships.

14.
_______________________________________________________________

Over the years, Head and Jaudon had various disagreements. Head complained to
Superintendent Williams about Jaudon, and Williams advised Head to keep his head down and
do his job.1 Jaudon brought some errors that Head made to Williams’ attention informally but
Head was never formally disciplined.
In September of 2013, Department General Manager2 Todd Gale observed Head asleep at
his desk, acting disoriented, and slurring his speech. Gale wrote a letter to Head informing him
that Head was seen “dozing off on the job” in March and September, and that he “on occasions
appeared disoriented.” Head was on a few medications including painkillers for his hip and
Xanax. The Department kept a list of Head’s medications on file for drug testing purposes. Gale
instructed Head to obtain a work release from his doctor and informed him that continuing this
behavior would lead to disciplinary action. Head contacted his doctor who began to taper him off
the painkillers and discontinued the Xanax. Head’s doctor gave him a work release.
In the Spring of 2014, Marcus Rushing replaced Williams as Superintendent. Rushing
was promoted from within the Department, formerly having served as a project engineer
reporting directly to the Superintendent.
Near the end of May 2014, Head was filling in on dispatch while the regular dispatcher
was at lunch. Head took a call from a customer that was without power and recorded the call in
1

In his deposition, Williams mentioned a few issues Head had over the years but it is unclear whether any of them
resulted in formal disciplinary action. Williams also stated that he and Head were personal friends.
2
The General Manager is over the entire Department and reports directly to an appointed five-member board.

4

the logbook. Head then attempted to dispatch a crew to service the customer but was unable to
reach the crew because they were also at lunch. The regular dispatcher returned and Head went
back to his office. Around 4:15 that afternoon the customer called back and again complained,
she was still without power. Head remembered that he was not able to send a crew at lunchtime
and a service crew was dispatched. An official verbal warning signed by Jaudon and Rushing
was issued to Head for failing to dispatch a crew or to communicate the outage to the regular
dispatcher, and for leaving the customer without power.
Less than a week later, on June 5, 2014, Jaudon wrote Head up stating, “has trouble
following instructions (verbal), cannot focus on his job, makes multiple errors, does not check
his work.” According to Jaudon, Head made errors on three out of twenty-one updates he entered
in the transformer database. Head signed the warning but disagreed stating, “I feel like I come to
work focused and do a good job. It could be better without all the interruption and outside
disruptions. Always learning.” Head did not dispute the database errors.
In September, Head was again issued a written warning after he was an hour and a half
late for work, and failed to include required information on a phone log and repair sheet. Head
admits that he overslept because his alarm did not go off. The Department suspended Head for
five days.
Head was terminated in October after Jaudon reviewed 164 of his mapping updates and
found errors on thirty of them. General Manager Gale, Superintendent Rushing, and Chief
Engineer Jaudon were all present for Head’s termination. Head’s termination letter notes that he
was previously warned regarding his job performance in May, June, and September.
Head filed a discrimination charge with the Equal Employment Opportunity Commission
alleging that the Department fired him because of his age and disability. Head received a right-

5

to-sue letter from the Commission and subsequently filed this suit. Head alleges that his work did
not deteriorate and that but for his age, disability, and need for accommodation the Department
would not have fired him. Head was fifty-eight years old at the time of his termination and the
Department replaced him with a person fifty years old. The Department counters it fired Head
for poor performance and now requests summary judgment in its favor on all of Head’s claims.
Standard of Review
Federal Rule of Civil Procedure 56 governs summary judgment. Summary judgment is
warranted when the evidence reveals no genuine dispute regarding any material fact, and the
moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). The rule
“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.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
The moving party “bears the initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of [the record] which it believes demonstrate
the absence of a genuine issue of material fact.” Id. at 323, 106 S. Ct. 2548. The nonmoving
party must then “go beyond the pleadings” and “designate ‘specific facts showing that there is a
genuine issue for trial.’” Id. at 324, 106 S. Ct. 2548 (citation omitted). In reviewing the evidence,
factual controversies are to be resolved in favor of the non-movant, “but only when . . . both
parties have submitted evidence of contradictory facts.” Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994) (en banc). When such contradictory facts exist, the Court may “not make
credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 150, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000). Conclusory allegations,

6

speculation, unsubstantiated assertions, and legalistic arguments have never constituted an
adequate substitute for specific facts showing a genuine issue for trial. TIG Ins. Co. v. Sedgwick
James of Wash., 276 F.3d 754, 759 (5th Cir. 2002); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir.
1993); Little, 37 F.3d at 1075.
Age Discrimination
Under the Age Discrimination in Employment Act, an employer may be liable for
“discharg[ing] any individual . . . because of such an individual’s age.” 29 U.S.C. § 623(a)(1). To
prove discriminatory termination under the ADEA, the plaintiff must show that but for the
alleged discrimination, he would not have been terminated. Gross v. FBL Financial Servs., Inc.,
557 U.S. 167, 176, 129 S. Ct. 2343, 174 L. Ed. 2d 119 (2009). When, as here, a plaintiff seeks to
establish his claim with circumstantial evidence only, the Court assesses the sufficiency of the
evidence using the McDonnell Douglas burden-shifting framework. Miller v. Raytheon Co., 716
F.3d 138, 144 (5th Cir. 2013) (citation omitted).
Within the McDonnell Douglas contours, Head must first establish a prima facie case of
age discrimination, “at which point, the burden shifts to the employer to articulate a legitimate
non-discriminatory reason for the employment decision.” Berquist v. Wash. Mut. Bank, 500 F.3d
344, 349 (5th Cir. 2007). If the Department meets its burden of production, Head must introduce
evidence from which a jury could infer that the Department’s proffered reasons are not true —
but are instead a pretext for discrimination— or that even if the Department’s reasons are true,
Head was terminated “because of” his age. Miller, 716 F.3d at 144 (citing Gross, 557 U.S. at
180, 129 S. Ct. 2343). To demonstrate pretext under the ADEA, Head must offer evidence to
rebut each of the employer’s proffered reasons. E.E.O.C. v. Tex. Instruments Inc., 100 F.3d
1173, 1180 (5th Cir. 1996) (en banc) (quoting Grimes v. Tex. Dept. of Mental Health & Mental

7

Retardation, 102 F.3d 137, 140–41 (5th Cir. 1996)).
Age Discrimination: Prima Facie Case
To establish a prima facie case of discriminatory termination under the ADEA, Head
must demonstrate that he: (1) was discharged, (2) was qualified for the position held, (3) was a
member of the protected class, and (4) was either replaced by someone younger, replaced by
someone outside the protected class, or otherwise discharged because of his age. Phillips v.
Leggett & Platt, Inc., 658 F.3d 452, 455 (5th Cir. 2011) (citing Rachid v. Jack In The Box, Inc.,
376 F.3d 305, 309 (5th Cir. 2004)). The Department contests only the final element for summary
judgment purposes, arguing that the eight-year gap between Head and his replacement is not
legally sufficient to establish a prima facie case of age discrimination.
Neither the Supreme Court nor the Fifth Circuit has provided a bright-line rule to
determine which age differences are considered substantial and which are considered
insubstantial. Bienkowski v. Am. Airlines, Inc., 851 F.2d 1503, 1506 (5th Cir. 1988) (“The ADEA
does not lend itself to a bright-line age rule.”); Hall v. Sealy, Inc., 2011 WL 4389701, at *5 (N.D.
Tex. Sept. 21, 2011). The Fifth Circuit stated in dicta that five years presents a “close question”
as to whether the age difference is legally sufficient, Rachid, 376 F.3d at 313, and has held four
years to be insubstantial as a matter of law. Earle v. Aramark Corp., 247 F. App’x 519, 523 (5th
Cir. 2007).
District Courts within the Fifth Circuit, including this one, have routinely treated the
fourth element as satisfied for summary judgment purposes when the age difference between a
plaintiff and his replacement is seven years or more. See Ruth v. Eka Chemicals, Inc., 92 F.
Supp. 3d 526, 530 (N.D. Miss. Feb 17, 2015), aff’d, 623 F. App’x 281 (5th Cir. 2015); Frazier v.
Lockheed Martin Operations Support, Inc., 2013 WL 2897897, at *4 (S.D. Miss. June 13, 2013)

8

(finding that age differences of seven, eight, and seventeen years were sufficient for purposes of
the plaintiff’s prima facie case). See Hall, 2011 WL 4389701, at *5 (declining “to conclude as a
matter of law that an age difference of more than nine years is insubstantial”); Bell v. Raytheon
Co., 2009 WL 2365454, at *6 (N.D. Tex. July 31, 2009) (assuming that an approximately sevenyear difference is substantial); Daly v. Home Depot U.S.A., Inc., 2007 WL 4260900, at *5 (W.D.
Tex. Dec. 3, 2007) (finding that a difference of seven years is a “close question,” but assuming
for summary judgment purposes that it is sufficient); Cannon v. St. Paul Fire & Marine Ins. Co.,
2005 WL 1107372, at *4 (N.D. Tex. May 6, 2005) (“The Court is not prepared to declare an age
difference of approximately seven years insubstantial as a matter of law.”).
This Court chooses to follow the lead of other district courts within the Fifth Circuit and
holds that an eight-year difference is sufficient for purposes of the fourth prima facie element.
The Court thus finds Head has carried his prima facie burden by showing he was replaced by an
employee eight years his junior.
Age Discrimination: Non-Discriminatory Reasons
Because Head carried his prima facie burden, the burden shifts to the Department to
provide at least one legitimate nondiscriminatory reason for terminating him. Berquist, 500 F.3d
at 349. The Department’s reason for the adverse employment action need not be persuasive or
credible. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509, 113 S. Ct. 2742, 125 L. Ed. 2d
407 (1993); Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 898 (5th Cir. 2002). Instead, its
burden is to produce “evidence, which, ‘taken as true, would permit the conclusion that there was
a nondiscriminatory reason for the adverse action.’” Price v. Fed. Express Corp., 283 F.3d 715,
720 (5th Cir. 2002) (quoting Hicks, 509 U.S. at 509, 113 S. Ct. 2742).
Here, the Department has advanced poor performance as its legitimate nondiscriminatory

9

reason for firing him. Specifically, the Department asserts that it fired Head for, all in 2014: (1)
Failing to dispatch a service crew to an outage in May, (2) making errors on updates to the
transformer database in June, (3) showing up an hour and a half late and making errors on a
phone log and repair sheet in September, and (4) making errors on a significant number of
mapping updates in October.
As noted above, the Department is not “required to ‘persuade the court that it was
actually motivated by the proffered reasons.’” Turner v. Kansas City S. Ry. Co., 675 F.3d 887,
901 (5th Cir. 2012) (quoting Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 254–55, 101
S. Ct. 1089, 67 L. Ed. 2d 207 (1981)). It must only “clearly set forth, through the introduction of
admissible evidence, the reasons for [its decision].” Accordingly, the Court finds that the
Department satisfied its burden of production here.
Age Discrimination: Pretext or Because of Age
Shifting to the final stage in the McDonnell Douglas analysis, Head must provide
sufficient evidence from which a jury could reasonably infer that the Department’s reasons are
merely pretextual, or that even if the reasons are true, his age was the but-for cause of his
termination. Miller, 716 F.3d at 144 (citation omitted). Pretext may be demonstrated “through
evidence of disparate treatment or by showing that the employer’s proffered explanation is false
or ‘unworthy of credence.’” Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010)
(quoting Jackson v. Cal–Western Packaging Corp., 602 F.3d 374, 378–79 (5th Cir. 2010)).
Age Discrimination: Pretext: May Dispatch Error
Head acknowledges that he failed to dispatch a crew to an outage in May but argues that
his failure was not unique, and that other dispatchers made mistakes but were not disciplined.
Regular dispatcher Waltman agrees that she occasionally made mistakes in dispatch, such as

10

forgetting to record a phone number, but that her mistakes were not a detriment to the company,
and that she never failed to send a repair crew or to record a service call. According to Waltman
and Jaudon, while mistakes were made in dispatch that went undisciplined, Head’s error was
more serious because it left a customer without power. When questioned, neither Waltman nor
Jaudon could recall another similar incidence of a dispatcher failing to send out a crew to a
customer outage. Head was similarly unable to point to another similar occurrence.
Age Discrimination: Pretext: June Transformer Database
Head does not dispute that he made errors updating the transformer database in June of
2014. Head did disagree with Jaudon’s assessment of his focus. Head believed that he came to
work focused and that he did a good job. Further Head believed that Jaudon and Rushing were
just looking for a reason to get rid of him.
Age Discrimination: Pretext: September Tardiness
Again, Head does not dispute that he was an hour and a half late for work in September.3
Head argues that the Department only fired one other person for being late, and that person was
chronically late. Head also argues that the Department called other employees, especially
lineman, when they were late or did not show up for work, but that no one from the Department
bothered to call him. The Department responds that Head was only suspended for being late and
that his tardiness was only one factor in his termination. The Department agrees that it often
called lineman when they were late, but only due to the time sensitive nature of their
responsibilities.
Age Discrimination: Pretext: October Mapping Errors
As to the October mapping errors, Head argues that not all of the errors are attributable to
him. Head argues that in some cases the crews performed the job differently than the way it was
3

The Department’s other allegation, that Head made errors on a light repair sheet is disputed.

11

assigned and that some of his changes may have disappeared during an overnight software
update. However, when questioned Head admitted that he committed at least some of the errors,
and could not recall a specific software update that these errors could be attributed to or any
specific instances where crew performance was the cause. Head did have a method for doublechecking his work, and at some point, the Department did hire an outside company to perform
remote updates to the mapping software.
Age Discrimination: Pretext: Other Arguments
In addition to the above specific arguments, Head also argues that his treatment from the
Department changed for the worse when Rushing replaced Williams as Superintendent. Head
believes that Rushing targeted him for termination because of his age. Head also argues that he
was assigned additional duties, which were more physically demanding, that took him away
from mapping.
In order to meet his evidentiary burden on pretext, a plaintiff must demonstrate “that [the
defendant] did not in good faith believe the allegations, but relied on them in a bad faith pretext
to discriminate against him on the basis of his age.” Swenson v. Schwan’s Consumer Brands N.
Am., 500 F. App’x. 343, 346 (5th Cir. 2012) (citing Waggoner v. City of Garland, Tex., 987 F.2d
1160, 1166 (5th Cir. 1993)). To establish pretext, he must produce evidence demonstrating that it
was not a true reason for his termination. Waggoner, 987 F.2d at 1166. Ultimately, to prevail
under the ADEA, the Plaintiff must “prove, by a preponderance of the evidence, that age was the
‘but-for’ cause of the employer’s adverse action.” Gross, 557 U.S. at 176, 129 S. Ct. 2343. The
Court also notes that, factual controversies are to be resolved in favor of the non-movant, “but
only when . . . both parties have submitted evidence of contradictory facts.” Little, 37 F.3d at
1075. Conclusory allegations, speculation, unsubstantiated assertions, and legalistic arguments

12

have never constituted an adequate substitute for specific facts showing a genuine issue for trial.
Sedgwick, 276 F.3d at, 759; Recile, 10 F.3d at 1097; Little, 37 F.3d at 1075.
Here, Plaintiff Head has simply not produced any evidence, other than his own subjective
belief, that the Department’s proffered reason for his termination is pretextual or that he was
otherwise discharged because of his age. In every instance where Head was disciplined by the
Department, Head acknowledges that he did in fact make errors or commit other infractions. In
other words, Head fails to dispute that the Department’s reasons for firing him are not true.
Head does complain that he was assigned other duties that took him away from mapping
but he fails to draw any connection between the other duties and the Department’s proffered
reasons for his termination. Ultimately, Head’s claim rests only on his own subjective belief that
he was discriminated against on the basis of his age. Without more, the Plaintiff’s own subjective
belief is insufficient to demonstrate that there is a genuine issue for trial as to pretext. See
Armendariz v. Pinkerton Tobacco Co., 58 F.3d 144, 153 (5th Cir. 1995) (finding that Plaintiff’s
subjective belief that he had been discriminated against was not sufficient to create a jury issue
as to Employer’s proffered reason was a pretext for age discrimination) (citing Molnar v. Ebasco
Constructors, Inc., 986 F.2d 115, 119 (5th Cir. 1993) (subjective belief that age discrimination
was basis of discharge is insufficient to make an issue for the jury when employer articulates an
adequate nondiscriminatory reason); Little v. Republic Ref. Co., 924 F.2d 93, 96 (5th Cir. 1991)
(subjective belief of employee and co-worker that age motivated the employer’s action is of little
value and cannot be the basis of judicial relief); Amburgey v. Corhart Refractories Corp., Inc.,
936 F.2d 805, 814 n.40 (5th Cir. 1991); Elliott v. Group Medical & Surgical Service, 714 F.2d
556, 567 (5th Cir. 1983) (when the employee does not seriously dispute the objective truth of
rational reasons articulated by the employer, pretext can not be established by a subjective belief

13

that discrimination motivated the employer's action), cert. denied, 467 U.S. 1215, 104 S. Ct.
2658, 81 L. Ed. 2d 364 (1984)).
Without any evidence to undermine the Department’s proffered reasons as pretextual, any
evidence to contradict any fact relevant to the Department’s proffered reasons, or any other
evidence that the Department’s decision was otherwise motivated by discriminatory animus,
Head’s claim fails. Because Head has not brought forth any evidence of pretext, or that his age
was otherwise the but-for cause for his termination, summary judgment is appropriate in the
Department’s favor on Head’s claim for age discrimination.
Disability Discrimination
Head also asserts a claim that the Department wrongly terminated him because of his
disability. The ADA prohibits discrimination on the basis of an employee’s disability. Under the
ADA, it is unlawful for an employer to “discriminate against a qualified individual on the basis
of disability in regard to job application procedures [. . .] discharge of employees, [. . .] and other
terms, conditions, and privileges of employment.” 42 U.S.C. §12112(a).
Where, as here, the Plaintiff produces no direct evidence of discrimination, but instead
relies on circumstantial evidence to sustain his case, the Court applies the familiar McDonnell
Douglas burden-shifting framework to determine whether he can sustain his claim. Demarce v.
Robinson Prop. Grp. Corp., 642 F. App’x 348, 352 (5th Cir. 2016). To establish a prima facie
case of discrimination the plaintiff must show: “(1) that he has a disability; (2) that he was
qualified for the job; [and] (3) that he was subject to an adverse employment decision on account
of his disability.” E.E.O.C. v. LHC Grp., Inc., 773 F.3d 688, 697 (5th Cir. 2014) (adopting the
specific elements of a prima facie case as outlined in Zenor v. El Paso Healthcare Sys., Ltd., 176
F.3d 847, 853 (5th Cir. 1999)).

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If the Plaintiff successfully establishes a prima facie case of discrimination, the burden
shifts to the Department to articulate a legitimate, nondiscriminatory reason for the adverse
employment action. LHC Grp., 773 F.3d at 694. If the Department articulates a reason, the
burden then shifts back to the Plaintiff to show that the proffered reason was merely pretext. Id.
“An explanation is false or unworthy of credence if it is not the real reason for the adverse
employment action.” Caldwell v. KHOU-TV, 850 F.3d 237, 242 (5th Cir. 2017) (citing Laxton v.
Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003)). “In the context of a summary judgment
proceeding, the question is not whether the plaintiff proves pretext, but rather whether the
plaintiff raises a genuine issue of fact regarding pretext.” Id. Importantly, the Plaintiff need not
demonstrate that his disability was “the sole reason for the adverse employment decision.”
Delaval v. PTech Drilling Tubulars, L.L.C., 824 F.3d 476, 479-80 (5th Cir. 2016). Head may
demonstrate that his disability was a “motivating factor” in the decision “[so long as it] actually
play[s] a role in the employer’s decision making process and ha[s] a determinative influence on
the outcome.” Id. (citing LHC Grp., 773 F.3d at 702) (alteration in original).
The Court finds that Head’s claim for disability discrimination fails because he has not
brought forth any evidence of a causal connection required to establish the third prong of his
prima facie case. Other than his own subjective belief, Head cannot point to any evidence in the
record that connects his disability with his termination. Even if Head had established a prima
facie case, again he has not raised a genuine issue of fact as to pretext.
Clearly, the Department knew about Head’s hip replacement and the associated work
limitations. Head has pointed to only one specific incident in recent history where his disability
conflicted with his work duties. Jaudon asked Head to go out into the field and nail some
numbers onto electrical poles. This assignment required Head to climb a ladder, which he

15

reported to Jaudon he could not do. Head has not brought forth any evidence that this incident
had any negative impact on his employment and has not drawn any connection between this
incident and his termination. This single occurrence is insufficient to establish that Head was
terminated “on account of his disability.” See LHC Grp., 773 F.3d at 697. In addition, as
thoroughly discussed above, Head has not brought forth any evidence that the Department’s
proffered reason for his termination is false, or that his disability was otherwise a motivating
factor in his termination.
In response to a motion for summary judgment, “an employee must present ‘substantial
evidence’ that the employer’s legitimate, nondiscriminatory reason for termination is pretextual.”
Delaval, 824 F.3d at 480 (citing Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 233 (5th
Cir. 2015)). Head’s “subjective belief of discrimination . . . cannot be the basis of judicial relief.”
Id. (citing EEOC v. La. Office of Cmty. Servs., 47 F.3d 1438, 1448 (5th Cir. 1995). Because
Head failed to establish the causation prong of his prima facie case, failed to bring forth
“substantial evidence” of pretext, and instead relies on his own subjective belief of
discrimination, summary judgment is warranted in the Department’s favor on Head’s claim for
disability discrimination.
Failure to Accommodate
Finally, Head asserts a claim for failure to accommodate. Distinct from a claim that an
adverse employment action was motivated by the employee’s disability, an employer’s failure to
reasonably accommodate a disabled employee may constitute a violation of the ADA. Dillard v.
City of Austin, Texas, 837 F.3d 557, 562 (5th Cir. 2016) (citing LHC Grp., 773 F.3d at 703 n.6).
“This comes from the ADA’s definition of discrimination, which includes ‘not making
reasonable accommodations to the known physical or mental limitations of an otherwise

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qualified individual with a disability who is an applicant or employee . . . .’” Dillard, 837 F.3d at
562 (quoting 42 U.S.C. §12112(b)(5)(A)).
However, “[t]he ADA provides a right to reasonable accommodation, not to the
employee’s preferred accommodation.” Demarce, 642 F. App’x at 354 (citing Griffin v. United
Parcel Serv., Inc., 661 F.3d 216, 224 (5th Cir. 2011) (internal citation omitted). Ultimately, to
prevail on a failure to accommodate claim, a plaintiff must prove: “(1) [he] is a ‘qualified
individual with a disability;’ (2) the disability and its consequential limitations were ‘known’ by
the covered employer; and (3) the employer failed to make ‘reasonable accommodations’ for
such known limitations.” Id. (quoting Feist v. La. Dep’t of Justice, 730 F.3d 450, 452 (5th Cir.
2013)).
The Fifth Circuit has held that “ADA compliance requires an employer to engage in an
interactive process with an employee who requests an accommodation for his disability to
ascertain what changes could allow him to continue working.” Dillard, 837 F.3d at 562 (citing
LHC Grp., 773 F.3d at 700). “In other words, employer and employee must work together in
good faith, back and forth, to find a reasonable accommodation.” Id. (citing Chevron Phillips,
570 F.3d at 621–22). The Fifth Circuit has further characterized this process, as “ongoing” and
“reciprocal,” “not one that ends with the first attempt at accommodation, but one that continues
when the employee asks for a different accommodation or where the employer is aware that the
initial accommodation is failing and further accommodation is needed.” Id. at 562-63 (internal
quotations omitted).
Although a failure to accommodate is a distinct claim, the Court notes that as a practical
matter in this case there is a substantial overlap of facts and evidence between the Plaintiff’s
discrimination and accommodation claims. That Head has a disability that was known to the

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Department is not disputed. The questions now before the Court are whether Head was a
“qualified individual with a disability,” whether he requested a reasonable accommodation as
contemplated by the ADA, and if so whether the Department failed to make a reasonable
accommodation or otherwise failed to engage in a meaningful interactive process with Head to
determine what changes could allow him to continue working.
To be “qualified” under the ADA, Head must be able to “perform the essential functions”
of his job “with or without reasonable accommodation.” Credeur v. Louisiana Through Office of
Attorney Gen., 860 F.3d 785, 792 (5th Cir. 2017); 42 U.S.C. § 12111(8). “‘Essential functions’
are ‘fundamental,’ as opposed to ‘marginal,’ job duties such that a job is ‘fundamentally
alter[ed]’ if an essential function is removed.” Id. (quoting 29 C.F.R. § 1630.2(n)(l)). “Factfinders must determine whether a function is ‘essential’ on a case-by-case basis.” LHC Grp.,
Inc., 773 F.3d at 698. The text of the ADA indicates where this inquiry should begin:
For the purposes of this subchapter, consideration shall be given to
the employers judgment as to what functions of a job are essential,
and if an employer has prepared a written description before
advertising or interviewing applicants for the job, this description
shall be considered evidence of the essential functions of the job.
42 U.S.C. § 12111(8).
By all accounts, and according to Head’s written job description, he was able to perform
the essential functions of his job. Head only pointed to one occasion in recent history where his
disability was an issue, when he was asked to use a ladder to attach pole numbers. It is
undisputed that Head was not required to perform this task after he raised the issue, nor did the
Department take any negative action against him as a result. This one-time, or at most
occasional, assignment was only marginal to Head’s duties. Credeur, 860 F.3d at 792; 42 U.S.C.
§ 12111(8); 29 C.F.R. § 1630.2(n)(l). Head was able to perform the “essential functions” of his

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job without an accommodation, and is therefore not a qualified individual as contemplated by the
ADA. Id.
Even if Head was a qualified individual, there are a number of other causation faults with
his claim. After reviewing the record in this case, the Court finds that there is a question as to
whether or not Head ever requested an accommodation related to his disability. When questioned
on the issue, Head responded that the accommodation he requested was that the Department not
give him any additional duties, especially physically demanding ones, that would take him away
from his mapping responsibilities. Head also requested additional training on the updated
mapping software, and his request was denied.
Taking Head’s request for additional training first, the Court finds that this was not a
request for an accommodation as contemplated by the ADA. Although additional training on
mapping may have been beneficial to Head, there is no allegation or evidence of a relationship
between Head’s disability, stemming from his hip replacement and his ability to perform his
mapping duties. Although additional training may be a reasonable accommodation in some
cases, see 42 U.S.C. § 12111(9)(B), Head’s case is markedly different because the nature of his
physical disability, and any limitation derived from it, had no relationship or commonality with
the mapping training he requested. The ADA requires employers to make “reasonable
accommodations for such known limitations,” not to make any accommodation requested even if
it is not related to the disability limitation. Demarce, 642 F. App’x at 354 (quoting Feist, 730
F.3d at 452) (emphasis added).
Head’s request that the Department not assign him additional duties is a closer question.
Even so, Head has failed to bring forth any evidence that the Department attributed any of his
limitations or employment issues to his disability. See Patton v. Jacobs Engineering Grp., Inc.,

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863 F.3d 419, 425 (5th Cir. 2017) (dismissing employee’s accommodation claim when employee
failed to demonstrate that employer attributed employee’s workplace limitation to his disability.)
The issues that Head had at work were all related to general productivity, mapping, dispatch, and
appearing on time for work, not to any physical limitation. In addition, as noted above, this
request is unrelated to the essential functions of Head’s job. The Court finds that Head never
requested a reasonable accommodation as contemplated by the ADA.
Finally, the ADA does not require that employers anticipate and avoid every potential
situation in which difficulty related to a disability may arise. Instead, “ADA compliance requires
an employer to engage in an interactive process with an employee who requests an
accommodation for his disability to ascertain what changes could allow him to continue
working.” Dillard v. City of Austin, Texas, 837 F.3d 557, 562 (5th Cir. 2016) (citing LHC Grp.,
773 F.3d at 700). The record in this case reflects that Head’s job duties were modified as
necessary to allow him to continue working.
Because Head was not a qualified individual, and never requested a reasonable
accommodation as contemplated by the ADA, both essential elements of his claim, summary
judgment in the Department’s favor is appropriate on this claim.
Conclusion
For all of the reasons fully explained above, the Department’s Motion for Summary
Judgment [35] is GRANTED on all of the Plaintiff’s claims. With no remaining issues before
this Court, this case is DISMISSED with prejudice. This CASE is CLOSED.
So ORDERED on this the 12th day of September, 2017.

/s/ Sharion Aycock
UNITED STATES DISTRICT JUDGE
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