Gibbs v. Kelly Services et al

Filing 73

ORDER granting 60 Motion for Summary Judgment; granting 62 Motion for Summary Judgment for the reasons set out in the order. A judgment will be entered in a separate docket entry to follow. Signed by District Judge Daniel P. Jordan III on March 4, 2016. (SP)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
VINSON GIBBS

PLAINTIFF

V.

CIVIL ACTION NO. 3:14CV650 DPJ-FKB

KELLY SERVICES AND
NISSAN NORTH AMERICA, INC.

DEFENDANTS
ORDER

This employment-discrimination action is before the Court on the motions of Kelly
Services [60] and Nissan North America, Inc. [62] for summary judgment pursuant to Federal
Rule of Civil Procedure 56. Plaintiff Vinson Gibbs has responded in opposition [65, 66] to both
motions. The Court, having considered the memoranda and submissions of the parties, finds that
Defendants’ motions should be granted.
I.

Facts and Procedural History
Plaintiff Vinson Gibbs began work as a Kelly Services temporary employee assigned to

the Nissan auto-manufacturing plant in August 2012. This suit arises from disputes related to
Gibbs’s absenteeism and timekeeping practices.
A.

Absenteeism

All Kelly Services employees at Nissan are subject to an attendance policy which assigns
points for both approved and unapproved absences. Once an employee reaches a certain number
of points, he or she will receive a corrective action such as verbal and written reminders. On
May 8 and August 5, 2013, Gibbs felt ill and visited the onsite medical clinic run by CHS Health
Services (“CHS”), a third party under contract with Nissan. CHS detected high blood pressure
both days and sent Gibbs home. For these absences, Gibbs was assigned four points—two per
incident. Reminder [62-8]. This prompted a written reminder on August 27, 2013, for

unacceptable attendance. Id. Believing that the assignment of points amounted to disability
discrimination, Gibbs filed a complaint with the Equal Employment Opportunity Commission.
B.

Timekeeping

Employees at Nissan enter the plant through turnstiles via swiped identification cards.
After passing through the turnstiles, Gibbs would then sign a log kept in his supervisor’s office.
On October 3, approximately six weeks after filing the EEOC charge, Nissan manager Brad
Caldwell witnessed Gibbs, who had started his shift at 11:00 a.m., leaving the plant at 12:48 p.m.
Caldwell requested an investigation, which revealed that Gibbs had left and returned to the plant
on several occasions during his shift hours. After comparing the turnstile records and the time
logs, Defendants concluded that Gibbs had been paid for over eight hours of work he did not
complete. His employment was terminated for falsification of time records.
After receiving notice of his right to sue on his disability claim, Gibbs filed this action
against Nissan and Kelly Services alleging disability discrimination and retaliation under the
ADA, and violation of the Family Medical Leave Act. Following discovery, both Defendants
moved for summary judgment, and Gibbs dropped the FMLA claims. The remaining issues are
fully briefed, and the Court is prepared to rule.
II.

Summary Judgment Standard
Summary judgment is warranted under Rule 56(a) of the Federal Rules of Civil

Procedure when evidence reveals no genuine dispute regarding any material fact and that the
moving party is entitled to judgment as a matter of law. 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

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case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986).
The party moving for summary judgment “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. 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 (citation omitted). Conclusory allegations,
speculation, unsubstantiated assertions, and legalistic arguments are not 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); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)
(en banc); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993).
III.

Analysis
A.

Disability Discrimination

The Americans with Disabilities Act (ADA) prohibits discrimination on the basis of a
disability. As with other anti-discrimination statues, a plaintiff attempting to prove
discrimination using circumstantial evidence must satisfy the McDonnell Douglas burdenshifting framework. E.E.O.C. v. Chevron Phillips Chem. Co., LP, 570 F.3d 606, 615 (5th Cir.
2009). The plaintiff must first make out a prima-facie case of discrimination by showing: (1) he
is disabled, has a record of having a disability, or is regarded as disabled; (2) he is qualified for
his job; (3) he was subjected to an adverse employment action; and (4) he was replaced by or

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treated less favorably than a non-disabled employee. Burton v. Freescale Semiconductor, Inc.,
798 F.3d 222, 230 (5th Cir. 2015).1
If the employee states a prima facie case, the employer must articulate a legitimate
non-discriminatory reason for the adverse employment action. Id. at 231. Finally, the burden
shifts back to the plaintiff to show that the articulated reason is pretext for discrimination. Id.
Defendants argue that Gibbs cannot meet any of the prongs of a prima-facie case of disability
discrimination, nor can he show pretext.
1.

Disability

Gibbs submits that Defendants regarded him as disabled due to his high blood pressure.
“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
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.” 42 U.S.C. § 12102(3)(A). “The amended
‘regarded as’ provision reflects the view that ‘unfounded concerns, mistaken beliefs, fears,
myths, or prejudice about disabilities are just as disabling as actual impairments.’” Cannon v.
Jacobs Field Servs. N. Am., Inc., No. 15-20127, 2016 WL 157983, at *4 (5th Cir. Jan. 13, 2016)
(quoting 29 C.F.R. § Pt. 1630, App. § 1630.2(1)). A plaintiff is no longer required to show that
the employer regarded him as being substantially limited in a major life activity. Id.

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There is some authority suggesting that the fourth element—being replaced by or
treated less favorably than a non-disabled employee—is inapplicable in a case of disability
discrimination, though Gibbs does not make that argument. See E.E.O.C. v. LHC Group, Inc.,
773 F.3d 688, 696 (5th Cir. 2014); but see Burton, 798 F.3d at 230 (using fourth prong);
Hoffman v. Baylor Health Care Sys., 597 F. App’x 231, 235 (5th Cir. 2015) (same); see also
Pl.’s Resp. [66] at 4 (including the fourth prong).
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Defendants argue that even assuming they knew Gibbs was sent home for high blood
pressure on May 8 and August 5, that would not support a finding that they regarded him as
having a disability. See Nissan Mem. [63] at 14 (citing Flanner v. Chase Inv. Servs. Corp., 600
F. App’x 914, 922 (5th Cir. 2015) (affirming summary judgment on ADA claim and rejecting
argument that it could be implied that the employer regarded the plaintiff as disabled because it
was aware of his heart surgery). Defendants’ argument has some appeal. Gibbs missed two
days over a three month period, which—absent other competent evidence—would not seem to
suggest a finding that he was sent home because Defendants perceived him as having a
disability. Still, the Court need not reach the issue because there was no adverse action taken.2
2.

Adverse Employment Action

Gibbs states in his Complaint that he was sent home and assigned attendance points in
violation of the ADA. See Compl. [1-2] at 7. Defendants contend that even if true, Gibbs fails
to allege an adverse employment action. See Thompson v. City of Waco, Tex., 764 F.3d 500, 503
(5th Cir. 2014) (noting that adverse employment actions are ultimate employment decisions such
as hiring, firing, demoting, promoting, and compensating).
There seems to be no dispute that the attendance points alone would not constitute an
adverse employment action, nor would sending an employee home on two days, though the
parties do not directly address it. But Gibbs’s response muddies the water with respect to the

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Factually, the parties discuss the various actions by Kelly, Nissan, and CHS, but there is
no legal analysis with respect to the relationships among those entities and Gibbs. For example,
no one addresses who constituted the statutory employer. Similarly, CHS diagnosed the high
blood pressure and decided to send Gibbs home. Plaintiff states—without legal authority—that
both Defendants are responsible for those decisions, but the parties do not analyze the issue.
Because the claim is otherwise deficient, the Court has not attempted to separate Kelly, Nissan,
and CHS.
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adverse actions he contends are in dispute. He states: “As for attendance points, the Plaintiff
does not contend that they constituted an ‘adverse employment action’ in itself but does regard it
as the lack of an accommodation because he was sent home and then assigned attendance
points.” Resp. [65] at 6 (emphasis added). In addition, Defendants construe some of Gibbs’s
arguments as suggesting that he also believes Defendants terminated his employment because
they regarded him as having a disability.
Defendants argue that any claims other than the one related to the attendance points are
too little too late. As they note, Gibbs’s EEOC charge, his deposition testimony, and his
Complaint tie the discrimination claim to the attendance points and the retaliation claim to the
termination of his employment. See EEOC Charge [66-5] (complaining that he was sent home
and given points for high blood pressure and claiming the “company’s policy” discriminates
“against individuals because of sickness and disability”); Gibbs Dep. [66-1] at 20–21 (testifying
that his termination was in retaliation for filing an EEOC charge); Compl. [1-2] at 7
(complaining that he was sent home and charged with points in violation of the ADA).
Similarly, Gibbs did not raise a failure-to-accommodate claim in his Complaint or EEOC charge.
Gibbs may not assert new claims in response to Defendants’ motions. See Cutrera v. Bd.
of Supervisors of La. State Univ., 429 F.3d 108, 113 (5th Cir. 2005) (claim raised in response is
not properly before the court). And any amendment to the Complaint at this point would be
futile because Gibbs failed to exhaust these other claims. See Stith v. Perot Sys. Corp., 122 F.
App’x 115, 118 (5th Cir. 2005) (failure to raise claim in EEOC charge is a failure to exhaust).3

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The accommodation claim suffers other deficiencies, such as lack of proof that Gibbs
requested accommodation. See Nissan Reply [69] at 4 n.1. Moreover, Gibbs set forth the fourpart test for disparate treatment under the ADA in his Response, confirming that his theory of
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In the end, Gibbs’s disparate-treatment claim under the ADA is premised on Defendants’
decision to assign attendance points and/or send him home on two days. Compl. [1-2] at 7.
Neither constitutes an ultimate employment decision, and therefore neither presents an adverse
employment action. For this reason alone, the ADA discrimination claim must be dismissed.
3.

Less Favorable Treatment

As to the fourth prong, Defendants submit that Gibbs cannot show that a non-disabled
employee was treated more favorably under nearly identical circumstances with respect to the
point system. Gibbs does not dispute the point, which is an independent basis for dismissal.
Gibbs does, however, contend, without citation to record evidence, that he “was replaced by a
Kelly employee who was not disabled.” Resp. [66] at 7. Again, the termination is not the
subject of his ADA claim. Even if it was, it would fail on this point for lack of record evidence.
See TIG Ins., 276 F.3d at 759 (holding that unsupported statements from counsel are not a proper
response). The Court has no obligation to “sift through the record in search of evidence to
support a party’s opposition to summary judgment.” Forsyth v. Barr, 19 F.3d 1527, 1533 (5th
Cir. 1994) (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 n.7 (5th Cir. 1992)).
Accordingly, Gibbs has failed to meet his burden as to the fourth element—assuming it applies.
In summary, Gibbs’s ADA discrimination case falls short because he fails to create a jury
question as to two of the elements of the prima facie case. As such, there is no need to determine
whether he can show pretext.

discrimination relates to disparate treatment, not failure to accommodate. See Resp. [65] at 4.
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B.

Retaliation

It is unlawful for an employer to retaliate against an individual for making a charge of
discrimination. To make out a prima facie case of retaliation, Gibbs must show that (1) he
engaged in a protected activity; (2) an adverse employment action occurred; and (3) a causal link
exists between the protected activity and the adverse employment action. Turner v Baylor
Richardson Med. Ctr., 476 F.3d 337, 348 (5th Cir. 2007). For purposes of summary judgment,
Defendants assume that Gibbs can make a prima facie showing but argue that he cannot show
the decision to terminate his employment was pretextual. Nissan Mem. [63] at 17. Specifically,
Defendants submit that Gibbs was fired after an investigation revealed he was falsifying his time
records.
Because Defendants offered a legitimate, non-retaliatory reason for the decision, Gibbs
must show that “the adverse action would not have occurred ‘but for’ the employer’s retaliatory
motive.” Feist v. La. Dept. of Justice, Office of the Atty. Gen., 730 F.3d 450, 454 (5th Cir.
2013). “In order to avoid summary judgment, the plaintiff must show ‘a conflict in substantial
evidence’ on the question of whether the employer would not have taken the action ‘but for’ the
protected activity.” Id. (quoting Long v. Eastfield College, 88 F.3d 300, 308 (5th Cir. 1996)).
In an effort to show pretext, Gibbs first points out that he was fired within forty-five (45)
days of filing his EEOC complaint. Resp. [65] at 9. While temporal proximity is generally
considered an acceptable means of establishing a causal link at the prima-facie stage, it is not a

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method of proving “but for” causation. See Strong v. Univ. Healthcare Sys., LLC, 482 F.3d 802,
808 (5th Cir. 2007).4
Second, Gibbs attempts to cast doubt on the timekeeping investigation, arguing that it
included “questionable turnstile reports,” challenging the lack of video records, and complaining
that the only eyewitness is deceased. Resp. [65] at 9. But these arguments miss the mark. Antidiscrimination statutes “do not require an employer to make proper decisions, only nonretaliatory ones.” LeMaire v. La. Dept. of Transp. & Dev., 480 F.3d 383, 391 (5th Cir. 2007);
see also Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991) (noting that “even an
incorrect belief that an employee’s performance is inadequate” is a legitimate reason). The
question is whether the employer has an honest belief in its proffered nondiscriminatory reason.
Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 598 (5th Cir. 2007). Stated differently,
the inquiry is “‘whether the employer made a reasonably informed and considered decision
before taking’ the complained-of action.” Id. (quoting Smith v. Chrysler Corp., 155 F.3d 788,
807 (6th Cir. 1998)).
Here, there is no dispute that Nissan Senior Manager Brad Caldwell reported seeing
Gibbs leave the facility during working hours. See Pl.’s Resp. [66] at 3. Thereafter, Kelly
employee Daniel Ball was asked to investigate. Ball testified that he reviewed the turnstile
records, compared them to Gibbs’s time log, and confronted him with the disparities. Ball Dep.
[62-13] at 6–10. According to Ball, Gibbs “admitted that he left the facility at these times.
However, he couldn’t recall the explanation as to why he left the facility at these times.” Id. at 8.

4

Gibbs also included language about “mixed motive”; however, the “but for” standard is
applicable to ADA retaliation claims. See Feist, 730 F.3d at 454.
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In his declaration, Gibbs at least acknowledged telling Ball, “I don’t know or I am not sure”
when asked about various discrepancies. Gibbs Decl. [66-2] ¶ 19.
Ball then prepared a report detailing a total of 8 hours and 49 minutes of time between
September 2 and October 3, 2013, that Gibbs was paid for, but was not on the premises. Report
[62-12]. He recommended immediate termination for falsifying time, id. at 4, the sanction called
for in the employee handbook, Handbook [61-5] at 179. That recommendation was approved by
four members of management. Report [62-12] at 1. Significantly, Ball testified that at the time
of his investigation, he had no idea Gibbs had filed a charge of discrimination. Ball Dep. [62-13]
at 15. In the end, Gibbs must do more than argue that Defendants made an incorrect decision or
conducted a less-than-perfect investigation. See Bryant v. Compass Grp. USA Inc., 413 F.3d
471, 478 (5th Cir. 2005) (holding that “evidence that the employer’s investigation merely came
to an incorrect conclusion does not establish a racial motivation behind an adverse employment
decision”). Likewise, “[s]imply disputing the underlying facts of an employer’s decision is not
sufficient to create an issue of pretext.” LeMaire, 480 F.3d at 391; see also Sandstad v. CB
Richard Ellis, Inc., 309 F.3d 893, 899 (5th Cir. 2002) (“Merely disputing [the employer’s]
assessment of [the employee’s] performance will not create an issue of fact.”). Because Gibbs
has not shown that Defendants’ decision would not have been made “but for” his protected
activity, summary judgment on his retaliation claim is appropriate.
IV.

Conclusion
The Court has considered all arguments raised by the parties. Those not addressed in this

Order would not have changed the outcome. For the reasons described, Defendants’ motions
[60, 62] for summary judgment are granted. Plaintiff’s claims are dismissed with prejudice.

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A separate judgment will be entered in accordance with Federal Rule of Civil Procedure
58.
SO ORDERED AND ADJUDGED this the 4th day of March, 2016.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE

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