U.S. Equal Employment Opportunity Commission v. Dragon Rig Sales & Service, LLC, et al
Filing
114
MEMORANDUM AND ORDER denying 63 Motion for Summary Judgment. Order granting in part and denying in part 69 Sealed Motion for partial summary judgment. Signed by District Judge Marcia A. Crone on 3/25/2024. (KMH)
UNITED STATES DISTRICT COURT
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff,
versus
THE MODERN GROUP, LTD., and
DRAGON RIG SALES & SERVICE, LLC,
Defendants.
EASTERN DISTRICT OF TEXAS
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CIVIL ACTION NO. 1:21-CV-451
MEMORANDUM AND ORDER
Pending before the court is Defendants The Modern Group, Ltd. (“Modern”) and Dragon
Rig Sales & Service, LLC’s (“Dragon Rig”) (collectively, “Defendants”) Motion for Summary
Judgment (#63). Plaintiff Equal Employment Opportunity Commission (“EEOC”) filed a response
(#92), Defendants filed a reply (#105), and the EEOC filed a sur-reply (#108). Also pending
before the court is the EEOC’s Motion for Partial Summary Judgment (#69). Defendants filed a
response (#96), and the EEOC filed a reply (#106). Having considered the pending motions, the
submissions of the parties, the record, and the applicable law, the court is of the opinion that
Defendants’ motion should be denied and the EEOC’s motion should be granted in part and denied
in part.
I.
Background
The EEOC filed this lawsuit on behalf of Alexander Dare (“Dare”), alleging that
Defendants discriminated against Dare in violation of the Americans with Disabilities Act of 1990
(“ADA”), 42 U.S.C. § 12112(a), when they revoked his conditional offer of employment. On
February 27, 2019, Dare, who had previously worked as a welder, applied for a welding position
with Dragon Rig at its main location in Victoria, Texas. Dragon Rig, a manufacturer and service
company that constructs and provides oilfield service equipment, is a wholly owned subsidiary of
Modern. It is undisputed that Dragon Rig and Modern are separate legal entities.
Dragon Rig’s foreman, John Blaylock (“Blaylock”), interviewed Dare and conditionally
offered him a position as a welder. Blaylock then requested that Dare complete a pre-employment
drug screen, which is mandatory for all of Dragon Rig’s new hires.
Dare disclosed his
prescriptions for both methadone and Xanax to the third-party drug testing facility. Dare suffers
from opioid use disorder and is prescribed methadone as part of a medically assisted therapy
(“MAT”) program. Dare is also prescribed Xanax to treat his anxiety disorder. At the time he
applied for a welding position with Dragon Rig, Dare was prescribed 90 milligrams per day of
methadone and 8 milligrams per day of Xanax. It is undisputed that Dare never disclosed his
impairments to Blaylock or anyone else at Dragon Rig. Dare also never directly communicated
to anyone at Dragon Rig that he was taking methadone and Xanax.
Defendants’ Medical Review Officer (“MRO”), Dr. J. Taylor Starkey (“Dr. Starkey”),
reviewed Dare’s drug screen and prescriptions. Dare’s drug screen indicated quantities of
methadone and Xanax above the confirmation cutoff quantities for both medications. Dr. Starkey
marked Dare’s drug screen as “negative: has prescriptions” but included the following note: “His
drug screen is negative but both the methadone and especially the high dose Xanax are
SEDATING so he cannot work in a safety sensitive position or operate equipment.” Dr. Starkey
did not communicate with or examine Dare or his medical records before submitting the drug
screen results and his appended note to Dragon Rig.
2
Dragon Rig’s General Manager, Eric Brown (“Brown”), reviewed Dare’s drug test results
and Dr. Starkey’s safety warning. As far as Brown could recall, this was the first time that Dr.
Starkey—who had served as Dragon Rig’s primary occupational doctor for fifteen years—had
included a note on an applicant’s drug test results, so Brown considered Dr. Starkey’s note to be
a “red flag.” Brown called Modern’s Vice President of Human Resources, Richmond Bennett
(“Bennett”), to confer about Dr. Starkey’s comments. Brown and Bennett “jointly” decided to
withdraw Dare’s conditional offer of employment.
Brown then informed Blaylock that Dragon Rig could not hire Dare. According to
Blaylock, he was told that Dragon Rig could not hire Dare because “[h]e was on medication that
we couldn’t have in the shop because of the dosage he was taking.” Blaylock notified Dare that
Dragon Rig was rescinding his conditional offer of employment. Blaylock advised Dare that if
he could get off of his medications, he could complete another drug screen and then be
reconsidered for employment with Dragon Rig.
Dare later filed a charge of discrimination with the EEOC. On September 8, 2020, the
EEOC issued Defendants a Letter of Determination finding reasonable cause to believe that they
had violated the ADA. After the EEOC and Defendants were unable to resolve the matter through
informal methods of conciliation, the EEOC filed this lawsuit in August 2021, alleging that
Defendants discriminated against Dare on the basis of his actual disabilities and his record of a
disability. Notably, Dare never requested an accommodation from Dragon Rig; in fact, the EEOC
asserts that Dare could perform the essential functions of the welding job at Dragon Rig without
an accommodation.
3
Now, Defendants seek summary judgment, asserting that there is no genuine dispute of
material fact and they are entitled to judgment as a matter of law on the following issues: (1) the
EEOC cannot establish its prima facie case of disability discrimination under the ADA;
(2) Defendants did not operate as an integrated enterprise, and Modern is thus not a proper
defendant in this case; (3) the EEOC cannot assert a failure-to-accommodate cause of action at this
juncture; (4) the EEOC cannot allege an independent claim for “failure to engage in an interactive
process”; and (5) the EEOC cannot present any evidence to support an award of punitive damages
against Defendants. In addition to opposing Defendants’ motion, the EEOC seeks partial summary
judgment as to liability because, it contends, there is no genuine dispute of material fact as to its
prima facie case, Defendants have waived any direct threat defense, and Defendants cannot proffer
any evidence to create a genuine dispute of material fact as to whether they revoked Dare’s offer
of employment for a legitimate, nondiscriminatory reason. In the alternative, the EEOC requests
that the court enter summary judgment on the following issues: (1) the EEOC has established its
prima facie case of disability discrimination; (2) Defendants cannot produce evidence
demonstrating that they revoked Dare’s offer of employment for a legitimate, nondiscriminatory
reason; (3) Defendants operated as an integrated enterprise; and (4) Defendants cannot offer
evidence to create a genuine dispute of material fact regarding their affirmative defenses of failure
to mitigate damages, failure to state a claim, failure to exhaust administrative remedies, and statute
of limitations/laches.1
1
The court addresses the parties’ pending motions to exclude the testimony of expert witnesses
in a separate Memorandum and Order.
4
II.
Analysis
A party may move for summary judgment without regard to whether the movant is a
claimant or a defending party. See Union Pac. R.R. Co. v. Palestine, 41 F.4th 696, 703 (5th Cir.
2022), cert. denied, 143 S. Ct. 579 (2023); Parrish v. Premier Directional Drilling, L.P., 917
F.3d 369, 380 (5th Cir. 2019); Apache Corp. v. W&T Offshore, Inc., 626 F.3d 789, 793 (5th Cir.
2010). Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment shall
be granted “if the movant shows that 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); Union Pac. R.R. Co.,
41 F.4th at 703; United Steel, Paper & Forestry, Rubber Mfg., Energy, Allied Indus. & Serv.
Workers Int’l Union v. Anderson, 9 F.4th 328, 331 (5th Cir. 2021); Smith v. Harris County, 956
F.3d 311, 316 (5th Cir. 2020); Parrish, 917 F.3d at 378; Hefren v. McDermott, Inc., 820 F.3d
767, 771 (5th Cir. 2016). The parties seeking summary judgment bear the initial burden of
informing the court of the basis for their motions and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
which they believe demonstrate the absence of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986); MDK Sociedad De Responsabilidad Limitada v. Proplant Inc.,
25 F.4th 360, 368 (5th Cir. 2022); Goldring v. United States, 15 F.4th 639, 644-45 (5th Cir.
2021); Playa Vista Conroe v. Ins. Co. of the W., 989 F.3d 411, 416-17 (5th Cir. 2021); Jones v.
United States, 936 F.3d 318, 321 (5th Cir. 2019).
“A fact issue is ‘material’ if its resolution could affect the outcome of the action.”
Hemphill v. State Farm Mut. Auto. Ins. Co., 805 F.3d 535, 538 (5th Cir. 2015) (quoting Burrell
v. Dr. Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408, 411 (5th Cir. 2007)), cert. denied, 578
5
U.S. 945 (2016); see MDK Sociedad De Responsabilidad Limitada, 25 F.4th at 368; Lexon Ins.
Co., Inc. v. Fed. Deposit Ins. Corp., 7 F.4th 315, 321 (5th Cir. 2021); Dyer v. Houston, 964 F.3d
374, 379 (5th Cir. 2020). “Factual disputes that are irrelevant or unnecessary will not be
counted.” Tiblier v. Dlabal, 743 F.3d 1004, 1007 (5th Cir. 2014) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)); accord Valencia v. Davis, 836 F. App’x 292, 296 (5th
Cir. 2020); see Dyer, 964 F.3d at 379; Parrish, 917 F.3d at 378. “An issue is ‘genuine’ if it is
real and substantial, as opposed to merely formal, pretended, or a sham.” Gerhart v. Barnes, 724
F. App’x 316, 321 (5th Cir. 2018) (quoting Bazan ex rel. Bazan v. Hidalgo County, 246 F.3d
481, 489 (5th Cir. 2001)), cert. denied, 139 S. Ct. 1239 (2019); accord Johnson v. City of San
Antonio, No. 22-50196, 2023 WL 3019686, at *6 n.7 (5th Cir. Apr. 20, 2023); Nall v. BNSF Ry.
Co., 917 F.3d 335, 340 (5th Cir. 2019). Thus, a genuine dispute of material fact exists “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Hefren,
820 F.3d at 771; accord MDK Sociedad De Responsabilidad Limitada, 25 F.4th at 368; Sanchez
Oil & Gas Corp. v. Crescent Drilling & Prod., Inc., 7 F.4th 301, 309 (5th Cir. 2021); Dyer, 964
F.3d at 379; Tiblier, 743 F.3d at 1007.
Once a proper motion has been made, the nonmoving parties may not rest upon mere
allegations or denials in the pleadings but must present affirmative evidence, setting forth specific
facts, to demonstrate the existence of a genuine issue for trial. Celotex Corp., 477 U.S. at 322
n.3; see Beard v. Banks, 548 U.S. 521, 529 (2006) (quoting FED. R. CIV. P. 56(e)); Flowers v.
Wal-Mart Inc., 79 F.4th 449, 452 (5th Cir. 2023); MDK Sociedad De Responsabilidad Limitada,
25 F.4th at 368; Clark v. CertainTeed Salaried Pension Plan, 860 F. App’x 337, 340-41 (5th Cir.
2021); Acadian Diagnostic Lab’ys, L.L.C. v. Quality Toxicology, L.L.C., 965 F.3d 404, 410 (5th
6
Cir. 2020). The court “should review the record as a whole.” Black v. Pan Am. Lab’ys, LLC,
646 F.3d 254, 273 (5th Cir. 2011) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 150 (2000)); see Hacienda Recs., L.P. v. Ramos, 718 F. App’x 223, 234 (5th Cir. 2018);
City of Alexandria v. Brown, 740 F.3d 339, 350 (5th Cir. 2014). All the evidence must be
construed in the light most favorable to the nonmoving party, and the court will not weigh the
evidence or evaluate its credibility. Reeves, 530 U.S. at 150; Seigler v. Wal-Mart Stores Tex.,
L.L.C., 30 F.4th 472, 476 (5th Cir. 2022); Batyukova v. Doege, 994 F.3d 717, 724 (5th Cir.
2021); Lyons v. Katy Indep. Sch. Dist., 964 F.3d 298, 302 (5th Cir. 2020).
Additionally, in reviewing “cross-motions for summary judgment, [the court] examine[s]
‘each party’s motion independently’ and view[s] ‘the evidence and inferences in the light most
favorable to the nonmoving party.’” Springboards To Educ., Inc. v. Hous. Indep. Sch. Dist., 912
F.3d 805, 811 (5th Cir. 2019) (quoting Morgan v. Plano Indep. Sch. Dist., 589 F.3d 740, 745
(5th Cir. 2009), cert. denied, 561 U.S. 1025 (2010)); accord Siplast, Inc. v. Emps. Mut. Cas.
Co., 23 F.4th 486, 492 (5th Cir. 2022). Cross-motions for summary judgment will not, in and
of themselves, warrant the granting of summary judgment unless one of the parties is entitled to
judgment as a matter of law. Joplin v. Bias, 631 F.2d 1235, 1237 (5th Cir. 1980); Bricklayers,
Masons & Plasterers Int’l Union of Am. v. Stuart Plastering Co., 512 F.2d 1017, 1023 (5th Cir.
1975); Newell-Davis v. Phillips, 592 F. Supp. 3d 532, 545 (E.D. La. 2022), aff’d, No. 22-30166,
2023 WL 1880000 (5th Cir. Feb. 10), cert. denied, 144 S. Ct. 98 (2023); Wilson v. Tessmer L.
Firm, PLLC, 483 F. Supp. 3d 416, 423 (W.D. Tex. 2020). The rationale for this rule is that each
party may move for summary judgment using different legal theories that rely upon different sets
of material facts. Bricklayers, Masons & Plasterers Int’l Union of Am., 512 F.2d at 1023; Smith
7
v. Twin Vill. Mgmt. LLC, No. 1:19-CV-406-DAE, 2021 WL 2772811, at *3 (W.D. Tex. Apr. 26,
2021); Wilson, 483 F. Supp. 3d at 423. Nonetheless, cross-motions for summary judgment may
be probative of the absence of a factual dispute when they reveal a basic agreement concerning
what legal theories and material facts are dispositive. Petro Harvester Operating Co., L.L.C. v.
Keith, 954 F.3d 686, 700 (5th Cir. 2020); Bricklayers, Masons & Plasterers Int’l Union of Am.,
512 F.2d at 1023; Penn-Am. Ins. Co. v. Dominguez, No. 6:21-CV-211-JDK, 2021 WL 5578684,
at *2 (E.D. Tex. Nov. 30, 2021); Wilson, 483 F. Supp. 3d at 423.
A.
Issues Upon Which Defendants and the EEOC Both Seek Summary Judgment
1.
Whether Defendants Operated as an Integrated Enterprise
In their summary judgment motions, Defendants and the EEOC both request summary
judgment on whether Defendants—Modern and Dragon Rig—constitute an integrated enterprise.
In particular, Defendants argue that it is undisputed that Modern and Dragon Rig are distinct legal
entities, and the EEOC cannot put forth any evidence to demonstrate that the two have more than
the ordinary parent-subsidiary relationship. Defendants emphasize that Dare applied for a position
at Dragon Rig, Dare received a conditional offer of employment from Dragon Rig, Dr. Starkey
reviewed Dare’s drug screen for a position with Dragon Rig, and Dragon Rig withdrew Dare’s
conditional offer of employment. Defendants accordingly contend that, as a matter of law,
Modern is not a proper defendant in this litigation. In both its response to Defendants’ motion and
its own summary judgment motion, however, the EEOC proffers evidence demonstrating that, as
a matter of law, Defendants operated as an integrated enterprise.
“[T]he doctrine of limited liability creates a strong presumption that a parent corporation
is not the employer of its subsidiary’s employees.” Long v. BDP Int’l, Inc., 919 F. Supp. 2d 832,
8
840 (S.D. Tex. 2013) (quoting Lusk v. Foxmeyer Health Corp., 129 F.3d 773, 778 (5th Cir.
1997)). Accordingly, “the mere existence of common management and ownership are not
sufficient to justify treating a parent corporation and its subsidiary as a single employer.” Id.
(quoting Lusk, 129 F.3d at 778). Thus, “[e]vidence suggesting a level of control that departs
significantly from the ordinary relationship between a parent and its subsidiary is required to rebut
this presumption.” LeBlanc v. AEP Elmwood LLC, 946 F. Supp. 2d 546, 553 (E.D. La. 2013)
(citing Lusk, 129 F.3d at 778).
“We use a four-part test to determine whether ‘superficially distinct entities may be
exposed to liability upon a finding they represent a single, integrated enterprise: a single
employer.’” Nicholson v. Securitas Sec. Servs. USA, Inc., 830 F.3d 186, 189 (5th Cir. 2016)
(quoting Trevino v. Celanese Corp., 701 F.2d 397, 403-04 (5th Cir. 1983)). When determining
whether legally distinct entities constitute an integrated enterprise, courts consider the following
factors: (1) interrelation of operations; (2) centralized control of labor operations; (3) common
management; and (4) common ownership or financial control. Trevino, 701 F.2d at 404. “[N]o
one of these factors is controlling, nor need all criteria be present.” Alcoa, Inc. v. Nat’l Lab.
Rels. Bd., 849 F.3d 250, 255 (5th Cir. 2017) (quoting Nat’l Lab. Rels. Bd. v. DMR Corp., 699
F.2d 788, 791 (5th Cir.), cert. denied, 464 U.S. 852 (1983)).2 “[T]he critical question to be
answered then is: What entity made the final decisions regarding employment matters related to
the person claiming discrimination?” Perry v. Pediatric Inpatient Critical Care Servs., P.A., 611
F. Supp. 3d 363, 380 (W.D. Tex. 2020) (quoting Trevino, 701 F.2d at 404), aff’d, 990 F.3d 918
2
The integrated enterprise analysis was “originally adopted by the Supreme Court in the context
of labor disputes” before being “extended to civil rights actions by [the United States Court of Appeals for
the Fifth Circuit] in [Trevino, 701 F.2d at 397].” Lusk, 129 F.3d at 777.
9
(5th Cir.), cert. denied, 142 S. Ct. 563 (2021); see Lusk, 129 F.3d at 777 (“This analysis
ultimately focuses on the question whether the parent corporation was a final decision-maker in
connection with the employment matters underlying the litigation . . . .”).
a.
Interrelated Operations
“[O]nly evidence of control suggesting a significant departure from the ordinary
relationship between a parent and its subsidiary—domination similar to that which justifies piercing
the corporate veil—is sufficient to rebut this presumption [of limited liability], and to permit an
inference that the parent corporation was a final decision-maker in its subsidiary’s employment
decisions.” Perry, 611 F. Supp. 3d at 382 (quoting Lusk, 129 F.3d at 778). “Relevant factors
suggesting the existence of interrelated operations include evidence that the parent: (1) was
involved directly in the subsidiary’s daily decisions relating to production, distribution, marketing,
and advertising; (2) shared employees, services, records, and equipment with the subsidiary;
(3) commingled bank accounts, accounts receivable, inventories, and credit lines; (4) maintained
the subsidiary’s books; (5) issued the subsidiary’s paychecks; or (6) prepared and filed the
subsidiary’s tax returns.” Id. (citing Lusk, 129 F.3d at 778).
Here, the EEOC has marshaled significant evidence of “interrelated operations” between
Modern, the parent company, and Dragon Rig, its subsidiary. As the EEOC points out, Dragon
Rig employee Patricia Schaefer (“Schaefer”) described Modern as Dragon Rig’s “corporate
office.” Indeed, Defendants acknowledge that Modern provides “back-office support”—including
10
accounting, human resources (“HR”),3 information technology (“IT”), banking, and security—to
Dragon Rig. As further evidence of the connected operations between the two entities, the EEOC
emphasizes that in his deposition, Brown, the general manager of Dragon Rig, described “our
HR” as being “based out of” and “headquartered out of” Modern’s office.
Modern also conducts quarterly “routine inspections” of Dragon Rig’s facilities and
operations and supervises Dragon Rig’s safety coordinator to ensure that Dragon Rig’s practices
and facilities comply with Modern’s safety policies. Moreover, in addition to providing marketing
services for its subsidiaries, including Dragon Rig, Modern’s employees also handle Dragon Rig’s
accounts payable, process Dragon Rig’s payroll and new-hire paperwork, and administer Dragon
Rig’s health insurance and other employee benefits programs. In terms of shared records, Bennett
confirmed that his department maintains the personnel files of all Dragon Rig employees.4
Furthermore, although the EEOC proffered no evidence related to the filing of Dragon Rig’s tax
returns, Bennett testified that his team prepares and files Dragon Rig’s EEO-1 reports with the
federal government. After considering this evidence, the court finds that the first factor weighs
in favor of finding that Defendants operated as an integrated enterprise.5
3
In their reply brief, Defendants note that Modern’s subsidiaries, including Dragon Rig, have
“on-site” HR. Nevertheless, Defendants acknowledge in their own motion that Modern provides HR
services to Dragon, and it is undisputed that, in this case, Brown called Bennett, a Modern employee, to
discuss Dare’s situation without involving any on-site HR staff at Dragon Rig.
4
Defendants’ reply makes much of the fact that Brown, Dragon Rig’s general manager, testified
that personnel files are kept at Dragon Rig, and he merely “believes” that “some” files or records are kept
at Modern. Bennett, however, confirmed that his office maintains records of Dragon Rig’s personnel files.
In addition, Schaefer, Dragon Rig’s administrative assistant and “on-site HR resource,” confirmed in her
own deposition testimony that “all the new hire paperwork” is sent to Modern “for further processing.”
5
Defendants emphasize in their reply brief that Brown testified that Dragon Rig does not share any
facilities or offices with Modern. Defendants fail to explain, however, the significance of this point,
beyond perhaps demonstrating that the two entities do not appear to share the same equipment.
11
b.
Centralized Control of Labor Operations
Next, the EEOC chiefly relies upon Bennett’s testimony discussing the entities’ weekly
operations meetings as evidence that the relationship between Defendants involves “centralized
control of labor operations.” Bennett described how Casey Crenshaw (“Crenshaw”), the CEO
of both Modern and Dragon Rig, holds weekly operations meetings that are attended by the
companies’ officers, Modern executives, and the general managers of Modern’s subsidiaries,
including Dragon Rig. At these meetings, the attendees discuss the subsidiary companies’ business
matters, such as supply chain issues, sales, and revenue, as well as issues related to HR and
payroll. Bennett explained that Modern and the general managers of the subsidiaries (including
Dragon Rig) jointly make most decisions impacting operations at these meetings.
As further evidence of the “centralized control” that Modern exercises over Dragon Rig,
the EEOC notes that Modern’s Human Resources Management Policy Manual (“Manual”) governs
Dragon Rig’s workplace and is known to Dragon Rig employees as the “employee handbook.”
The EEOC emphasizes that Dragon Rig has also implemented Modern’s safety manual;
environmental, accounting and IT policies; new hire “orientation curriculum”; new hire packets
and forms; pre-employment drug screening and prescription drug policies; and workplace
discrimination policies and procedures. Although Defendants argue that Dragon Rig also has its
own separate policies and procedures, such as its New Hire Policy & Procedure (#63-29), their
citation to this singular policy does not negate the breadth of the general policies and procedures
that are set out in Modern’s Manual and applied to Dragon Rig.
In addition, the EEOC focuses on Bennett’s role in Dragon Rig’s hiring decisions, citing
Lusk for the proposition that “[s]uitable evidence of centralized labor and employment decisions
12
includes parental control of hiring, firing, promoting, paying, transferring, or supervising
employees of the subsidiary.” 129 F.3d at 780 n.8. Generally, Bennett testified that, as a Modern
employee, he does “not necessarily” review potential hires and that Brown makes most routine,
day-to-day employment decisions at Dragon Rig. Brown testified, however, that he involves
Bennett if there is an unusual issue, such as the circumstances presented by Dr. Starkey’s warning
about Dare. While there are some discrepancies as to who has the authority to override Brown’s
employment decisions,6 it is nevertheless undisputed that Bennett, as a Modern employee,
occasionally provides input in Dragon Rig’s hiring decisions. Most importantly, it is likewise
undisputed that Brown called Bennett to consult with him about Dare’s situation, giving rise to the
present litigation. This involvement of Bennett indicates that he, as an employee of the parent
company, exercises some level of control over the hiring of employees at the subsidiary. Taking
all of this evidence into account, the court concludes that there is sufficient evidence of
“centralized control of labor operations” such that the second factor weighs in favor of finding that
Modern and Dragon Rig operated as an integrated enterprise.
c.
Common Management, Common Ownership, and Common
Financial Control
As for the third and fourth factors, the EEOC emphasizes that, as confirmed by Bennett,
both Modern and Dragon Rig are owned by the Crenshaw family, and the two entities share the
6
Bennett testified that, while he can make a recommendation against hiring an applicant, the hiring
manager can nevertheless “override [his] recommendation.” Bennett explained that “it would probably
have to be a pretty good reason,” and the hiring manager would “probably have to go to [Crenshaw],” the
CEO, in order to override Bennett’s recommendation. Brown testified, on the other hand, that he has the
authority to hire, promote, and terminate employees without seeking approval from anyone else, including
Crenshaw.
13
same officers and directors.7 In fact, Crenshaw is the president and CEO of both Dragon Rig and
Modern, and the two entities also share the same COO, Doug Fierce, and the same CFO, Ben
Broussard. Finally, the EEOC asserts that Modern “exercises financial control over Dragon Rig
in that [Modern] finances the [companies’] various shared business and employee services,”
including HR, payroll, IT, and accounting, through what Bennett described in his deposition
testimony as “corporate allocations.” Specifically, Bennett explained that Dragon Rig pays
Modern “a monthly amount” for these shared services. Defendants do not refute any of this
evidence. Thus, the third and fourth factors weigh in favor of finding that Modern and Dragon
Rig operated as an integrated enterprise.
Lastly, the court bears in mind that the “critical question” at the heart of this inquiry is
“[w]hat entity made the final decisions regarding employment matters related to the person
claiming discrimination?” Perry, 611 F. Supp. 3d at 380. The record is clear on this point.
Although Defendants argue that Brown had already decided that Dragon Rig could not hire Dare
before he called Bennett because he stated that “[t]he decision to not hire [Dare] was made after
I read Dr. Starkey’s message on that drug screen . . . . At that point I made that decision,” both
Bennett and Brown confirm that they made this decision together. Specifically, when Bennett was
asked who made the decision not to hire Dare, he testified: “Eric [Brown] and I consulted with
each other about it, and I guess, ultimately, it was our decision.” Then, when Brown was asked
7
In their reply brief, Defendants argue that the EEOC fails to present legal support for the
contention that Crenshaw’s status as the CEO of Dragon Rig and one of several owners of Modern is
sufficient to find that the two entities act as an integrated enterprise. Defendants apparently ignore,
however, that “common management” and “common ownership or financial control” are two of the four
factors that courts consider in determining whether an integrated enterprise exists. Trevino, 701 F.2d at
404. Moreover, as described above, the EEOC cites substantial evidence beyond the mere fact that
Defendants share common management and common ownership.
14
at another point in his deposition who made the decision to withdraw Dare’s offer, he responded:
“Richmond Bennett and myself jointly.” Another employee, Dragon Rig’s Environmental Health
and Safety Coordinator, Heather Benavides, likewise confirmed: “It was Eric Brown and
Richmond Bennett that made that decision.” In fact, as the EEOC points out, Defendants
themselves assert in their own summary judgment motion that Brown and Bennett jointly arrived
at this decision. (“Brown and Bennett discussed Dr. Starkey’s warning . . . . They jointly decided
to withdraw the conditional offer of employment . . . .” (emphasis added)). The evidence
demonstrates that Brown and Bennett decided together to revoke Dare’s offer of employment.
Thus, both Dragon Rig and Modern were involved in the “final decisions regarding employment
matters related to the person claiming discrimination.” Id.
Upon consideration of the proffered evidence, the court determines that the EEOC has
conclusively established that Defendants operated as an integrated enterprise in this instance. As
a result, the EEOC is entitled to summary judgment on this issue, as the court concludes that
Modern and Dragon Rig operated as an integrated enterprise as a matter of law. Defendants have
failed to establish that, as a matter of law, they did not operate as an integrated enterprise.
Defendants’ motion for summary judgment is thus denied as to this issue.
2.
Dare’s Summary Judgment Declaration
a.
Whether Dare’s Declaration Is a “Sham”
Before turning to the remaining issues in the parties’ cross-motions for summary judgment,
the court must first determine whether the declaration executed by Dare (#69-8), which the EEOC
attached to its summary judgment motion, is competent summary judgment evidence. Dare’s
declaration provides a variety of information, including how he developed opioid use disorder,
15
how his opioid use disorder and anxiety impact him when untreated, how his medications affect
him, and his work history as a welder. Defendants challenge Dare’s declaration as a “sham,”
arguing that the court should not consider it because it contradicts several of Dare’s statements in
his deposition without explaining the conflicts. Additionally, Defendants also argue that Dare’s
declaration contains impermissible legal conclusions. The EEOC contends that Dare’s declaration
merely supplements his deposition testimony and does not contradict it.
It is well settled that the Fifth Circuit “does not allow a party to defeat a motion for
summary judgment using an affidavit that impeaches, without explanation, sworn testimony.”
Seigler, 30 F.4th at 477 (quoting S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir.
1996)); accord Benedetti v. Wal-Mart Stores Tex., L.L.C., 788 F. App’x 945, 949 (5th Cir. 2019);
Fornah v. Schlumberger Tech. Corp., 737 F. App’x 677, 682 n.3 (5th Cir. 2018). Simply put,
a declaration that contradicts the declarant’s deposition testimony is not sufficient evidence to
create a fact issue. Free v. Wal-Mart La., L.L.C., 815 F. App’x 765, 766 (5th Cir. 2020) (citing
Doe ex rel. Doe v. Dall. Indep. Sch. Dist., 220 F.3d 380, 386 (5th Cir. 2000), cert. denied, 531
U.S. 1073 (2001)).
“Conflicts between deposition testimony and subsequent affidavits or
declarations are resolved in favor of the deposition testimony unless the conflict is explained.”
Colindres v. Quietflex Mfg., 427 F. Supp. 2d 737, 746 (S.D. Tex. 2006) (citing Valleza v. City
of Laredo, 331 F. Supp. 2d 579, 582-83 (S.D. Tex. 2004)).
The sham affidavit doctrine, however, “‘is applied sparingly’ and may be invoked only
where there is ‘some inherent inconsistency between an affidavit and a deposition.’” Aqrawi v.
Am. Mod. Prop. & Cas. Co., 555 F. Supp. 3d 467, 473 (S.D. Tex. 2021) (quoting Guerrero v.
Total Renal Care, Inc., 932 F. Supp. 2d 769, 776 (W.D. Tex. 2013)); Cruz v. R2Sonic, LLC, 405
16
F. Supp. 3d 676, 684 (W.D. Tex. 2019) (quoting Eure v. Sage Corp., 61 F. Supp. 3d 651, 658
(W.D. Tex. 2014)). When a subsequent affidavit “merely supplements rather than contradicts
prior deposition testimony, the court may consider the affidavit when evaluating genuine issues
in a motion for summary judgment.” Durant v. Brooks, 826 F. App’x 331, 336 (5th Cir. 2020)
(quoting S.W.S. Erectors, Inc., 72 F.3d at 496). An affidavit is supplementary if it clarifies or
provides additional facts not given in the prior deposition and when the prior deposition “only
glanced upon the disputed issue.” Sabre Indus. Inc. v. Module X Sols., L.L.C., 845 F. App’x
293, 298 (5th Cir. 2021).
“The inquiry, as a whole, is aimed at gleaning whether the later affidavit is ‘so markedly
inconsistent with the affiant’s prior deposition as to constitute an obvious sham.’” Id. (quoting
Clark v. Resistoflex Co., 854 F.2d 762, 766 (5th Cir. 1988)); Winzer v. Kaufman County, 916
F.3d 464, 472 (5th Cir. 2019), cert. denied, 141 S. Ct. 85 (2020). Indeed, “the bar for applying
the [sham affidavit] doctrine is a high one, typically requiring affidavit testimony that is
‘inherently inconsistent’ with prior testimony.” Seigler, 30 F.4th at 477; Winzer, 916 F.3d at 472.
If the court finds that an affidavit or sworn statement contradicts prior deposition testimony, it is
properly excluded from consideration in connection with a motion for summary judgment. Free,
815 F. App’x at 767 (affirming district court’s exclusion of plaintiff’s affidavit where she provided
no explanation for its contradictory statements); Bouvier v. Northrup Grumman Ship Sys., Inc.,
350 F. App’x 917, 920-21 (5th Cir. 2009) (affirming district court’s exclusion of plaintiff’s sworn
statement, which was inconsistent with her prior deposition testimony).
“Although the court must resolve all factual inferences in favor of the nonmovant, the
nonmovant cannot manufacture a disputed material fact where none exists.” Klocke v. Watson,
17
597 F. Supp. 3d 1019, 1025 (N.D. Tex. 2022) (citing Albertson v. T.J. Stevenson & Co., Inc.,
749 F.2d 223, 228 (5th Cir. 1984)), aff’d, No. 22-10348, 2023 WL 2823060 (5th Cir. Apr. 7,
2023); see Seigler, 30 F.4th at 477 (“[A] nonmoving party may not manufacture a dispute of fact
merely to defeat a motion for summary judgment.” (quoting Doe, 220 F.3d at 386)). “If a party
who has been examined at length on deposition could raise an issue of fact simply by submitting
an affidavit contradicting his own prior testimony, this would greatly diminish the utility of
summary judgment as a procedure for screening out sham issues of fact.” Seigler, 30 F.4th at 477
(quoting Doe, 220 F.3d at 386); see Cleveland v. Pol’y Mgmt. Sys. Corp., 526 U.S. 795, 806
(1999) (recognizing that lower courts “have held with virtual unanimity that a party cannot create
a genuine issue of fact sufficient to survive summary judgment simply by contradicting his or her
own previous sworn statement (by, say, filing a later affidavit that flatly contradicts that party’s
earlier sworn deposition) without explaining the contradiction or attempting to resolve the
disparity”).
In the case at bar, Defendants identify three categories of statements in Dare’s declaration
that they contend inexplicably contradict Dare’s previous statements in his deposition: statements
pertaining to Dare’s work history, statements discussing the substantial limitations of Dare’s
impairments, and statements related to Dare’s self-weaning off his medications.
i.
Dare’s Work History
First, Defendants argue that Dare’s assertion in ¶ 2 of his declaration—“I started welding
at the age of 17 and I have worked as a welder all my adult life”—is contradicted by various
18
statements in his deposition testimony.8 Specifically, Defendants point to Dare’s testimony that:
he had not worked for any company as a “full W-2 employee” in the past ten years; he has not
filed a tax return since 2012; he voluntarily chose to be unemployed from 2017-2018, even though
8
Defendants also cite other so-called “record evidence”—specifically, the deposition testimony
of Dare’s MAT counselor, Magdalene Mata (“Mata”) and Dare’s psychiatrist, Dr. John Hopper (“Dr.
Hopper”), an Itemized Statement of Earnings from the Social Security Administration, and correspondence
and discovery responses from several of Dare’s purported former employers—to argue that Dare’s
declaration is a “sham” because it conflicts with these exhibits. Defendants, however, fail to establish that
the court may compare a declaration to such evidence in order to determine if the declaration is a “sham.”
While Defendants contend that the plaintiff’s affidavit in Sivertson v. Citibank, N.A., No. 4:18-CV169-ALM-CAN, 2019 WL 2519222, at *4-5 (E.D. Tex. Apr. 22, 2019), adopted by No. 4:18-CV-169,
2019 WL 5091991 (E.D. Tex. Oct. 11, 2019), was struck because it contradicted both the plaintiff’s prior
deposition testimony and “undisputed records in evidence,” Defendants overlook that the relevant
evidentiary records in Sivertson were a home equity affidavit and fair market value acknowledgment that
the plaintiff himself had previously signed and affirmed under oath. Thus, for purposes of a “sham
affidavit” analysis, the prior attestations by the plaintiff himself in Sivertson are not comparable to the
statements and testimony of other individuals that Defendants allege contradict Dare’s declaration.
Defendants’ reliance on In re Hinsley, 201 F.3d 638, 643 (5th Cir. 2000), is similarly misplaced.
While Defendants’ brief describes In re Hinsley as standing for the proposition that “a party’s self-serving
and unsupported statement in an affidavit will not defeat summary judgment where the evidence in the
record is to the contrary,” the case actually states much more narrowly that, because intent to defraud “can
be decided as a matter of law,” “a party’s self-serving and unsupported claim that she lacked the requisite
intent is not sufficient to defeat summary judgment where the evidence otherwise supports a finding of
fraud.” Id. (quoting BMG Music v. Martinez, 74 F.3d 87, 90 (5th Cir. 1996)). Thus, the rule articulated
in In re Hinsley appears narrowly cabined to the fraudulent intent context, or, at the very least, to
declarations concerning the declarant’s intent. Here, no aspect of Dare’s declaration purports to provide
self-serving statements regarding his intent—indeed, Dare’s intentions are utterly irrelevant to the analysis
of his ADA discrimination claim—rendering In re Hinsley inapplicable to the case at bar.
As a result, the court is unconvinced that it may compare Dare’s declaration to third parties’
deposition testimony or discovery responses for the purposes of determining whether Dare’s declaration
constitutes competent summary judgment evidence under the “sham affidavit” analysis. Indeed, at the
summary judgment stage, while the court may note the existence of a conflict between various pieces of
evidence for the sole purpose of determining whether genuine disputes of material fact exist, the court may
not weigh the evidence or evaluate its credibility. Reeves, 530 U.S. at 150; Seigler, 30 F.4th at 476. An
analysis of whether Dare’s declaration conflicts with the statements of other individuals strays perilously
close to requiring the court to weigh the evidence or to determine whose version of events is more credible.
See Winzer, 916 F.3d at 473 (“At most, the affidavit creat[ed] a credibility issue for [the affiant’s] version
of the facts. Such credibility determinations, however, are for the trier of fact, not the district court.”).
Thus, for purposes of the “sham affidavit” analysis, the court will not address Defendants’ arguments that
rely on evidence other than Dare’s prior deposition testimony.
19
he admitted that he was capable of working at that time; and he was voluntarily unemployed at the
time of his deposition in July 2022 and only “contracted out a little job” in 2020.
The EEOC responds that Dare’s declaration does not contradict his prior statements about
his work history. The EEOC emphasizes that, when Dare was asked during his deposition at what
age he began welding, Dare responded: “17”—consistent with his declaration. Similarly, when
Dare was asked during his deposition about his work in his late teens and early twenties, he
answered: “I’ve welded all my life.” Finally, the EEOC notes that Dare “testified extensively”
during his deposition about his history as a welder, including his experience with full-time
employment, self-employment, working as a contractor, and performing a “little spot welding.”
The court agrees that Defendants fail to identify an irreconcilable inconsistency between
Dare’s declaration and his deposition testimony. Dare’s declaration does not contradict his prior
testimony by stating, for example, that he has worked solely or consistently as a full-time or “W-2
employee” performing welding since the age of 17. Moreover, Dare’s statement in his declaration
that he has “worked as a welder all [his] adult life” does not preclude the possibility of some (or
all) of his work being comprised of sporadic odd jobs, contract work, or self-employment. Dare’s
declaration likewise does not definitively assert that he has never experienced periods of
unemployment (whether voluntary or involuntary) throughout his adult life. Nor does Dare’s
declaration contradict his deposition testimony by claiming that he filed tax returns in years that
he previously testified that he had not. Thus, because these purported discrepancies between
20
Dare’s declaration and his deposition testimony can be reconciled, the court is unpersuaded that
Dare’s statement about his work history renders his declaration a “sham.”9
ii.
The Substantial Limitations of Dare’s Impairments
Defendants next argue that Dare’s statements in ¶ 5 of his declaration—“Untreated, my
[opioid use disorder] causes substantial limitations of my ability to perform major life activities,
including caring for myself, learning, concentrating, thinking, communicating, and working”—and
¶ 8 of his declaration—“When untreated, my anxiety causes substantial limitations of my ability
to perform major life activities, including both emotional and physical abilities to function, to
learn, to concentrate, to think, to communicate, and to work”—are contradicted by various
statements in Dare’s deposition testimony. In particular, Defendants emphasize that Dare testified
that he did not have memory issues and that he had never been diagnosed with a learning disability
or “functional disorder.” Defendants also note that Dare testified that, prior to and following his
application to Dragon Rig, he was “physically,” “mentally,” and “emotionally” ready to work.
9
Defendants also note a discrepancy between Dare’s statement in his declaration that he was
currently 47 and had “worked as a welder all [his] adult life” since “start[ing] welding at the age of 17”
and the allegation in the EEOC’s complaint that “[a]t the time he applied for the position [with Dragon Rig
in 2019], Dare had 13 years’ experience as a welder.” Whether Dare had 13 years of experience or 26
years of experience as a welder at the time of his application to Dragon Rig in 2019, however, does not
have any material effect on the analysis of Dare’s qualifications for the welding position. Defendants do
not assert that Dare’s having only 13 years of experience would have rendered Dare unequipped with the
requisite skills and experience and thus unqualified for the welding position with Dragon Rig. In other
words, Dare’s statement in his declaration that he has been welding “all [his] adult life” does not alone
“manufacture a dispute of fact” that enables Dare to “defeat a motion for summary judgment.” Seigler,
30 F.4th at 477. Thus, this purported conflict does not implicate the evil that the “sham affidavit” doctrine
is intended to prevent. See id. Therefore, to the extent that a discrepancy exists between the years of
Dare’s work history as described in Dare’s declaration and the EEOC’s complaint, Dare’s declaration may
present questions of credibility for the jury to consider, but it does not create any genuine dispute of
material fact and thus does not warrant the striking of Dare’s declaration. See Winzer, 916 F.3d at 472-73
(citing Kennett-Murray Corp. v. Bone, 622 F.2d 887, 893-94 (5th Cir. 1980)).
21
The EEOC responds by arguing that Dare is not required to be diagnosed with a learning
disorder or so-called “functional disorder”10 in order to be considered “actually disabled” under
the ADA. The EEOC also maintains that Dare’s declaration does not contradict his prior
testimony because Dare has “never claimed to have a learning disability, a functional disorder,
or memory issue.” The court agrees with the EEOC as to both arguments. Dare’s confirmation
that he has not been formally diagnosed with a learning disability or “functional disorder” does
not negate his assertion that, when left untreated, his impairments may cause him to experience
difficulty with learning, concentrating, or performing other major life activities. Defendants cite
no authority to convince the court otherwise.
In addition, the EEOC explains that while Dare’s declaration describes how his
impairments affect him when “untreated,” Dare was in treatment and stable on medications that
alleviated the effects of his opioid use disorder and anxiety at the time he applied to Dragon Rig.
Thus, because Dare was medicated and in treatment at the time he applied to Dragon Rig, he was,
consistent with his testimony, “physically,” “mentally,” and “emotionally” able to work.11 Dare’s
declaration merely supplements his deposition testimony by describing how he is impacted by his
10
The court, like the EEOC, is unsure what Defendants mean by the term “functional disorder.”
The court observes, however, that counsel for Defendants specifically referenced “ADHD”
(Attention-Deficit/Hyperactivity Disorder) when asking Dare during his deposition if he had “ever been
diagnosed with any type of functional disorder.”
11
Specifically, Dare enrolled in his MAT program for the treatment of his opioid use disorder in
October 2014, meaning he began his methadone prescription well over four years before applying to
Dragon Rig in February 2019. Similarly, Dare sought treatment for his anxiety in August 2015, thus being
prescribed Xanax over three years before he applied to Dragon Rig.
22
impairments when untreated—a topic that was not discussed during his deposition. The court is
thus unconvinced that the identified statements demonstrate that Dare’s declaration is a “sham.”12
iii.
Dare’s Self-Weaning from Methadone and Xanax
Lastly, Defendants take issue with numerous statements in Dare’s declaration regarding
his stability on his methadone and Xanax prescriptions.13 Defendants assert that these statements
conflict with Dare’s testimony that he was, at the time of his deposition in July 2022, self-weaning
from his medications, and that he had last taken methadone ten days prior to the deposition and
Xanax eleven days prior to the deposition. Dare’s declaration does not, however, contradict his
testimony that he has attempted to self-wean; in fact, he states in his declaration that his “goal is
to wean [himself] off methadone and be completely opioid-free,” but because he does not wish to
relapse, he is “committed to continuing in the MAT program and do[ing] as [his] doctor and
counselor direct.” As the EEOC argues in an attempt to explain the apparent contradiction: “All
the evidence shows that Dare is, in fact, compliant with his treatment plans, although, as stated
in both his declaration and his depositions, he hopes to wean himself off his medications
12
Defendants also maintain that the EEOC’s complaint stated only that “Dare is a qualified
individual with two disabilities . . . which substantially limit a major life activity, brain function.” Dare
does not purport to contradict this statement in his declaration, however. In fact, many of the limitations
that he identifies in his declaration, such as learning, concentrating, thinking, communicating, and
working, implicate “brain function.” To the extent Dare’s declaration differs from this statement in the
EEOC’s complaint, Dare’s declaration merely supplements, rather than contradicts, the mention of “brain
function” in the pleading. Defendants’ argument on this point is thus unavailing.
13
Specifically, Defendants identify the following paragraphs of Dare’s declaration: ¶ 11—“I have
been stable at my prescribed [methadone] dose for several years, and I was stable at that dose in February
2019”; ¶ 12—“I have followed all rules mandated by the [methadone] clinic”; ¶ 14—“I am currently
prescribed 8 mgs. of Xanax daily, and this is the same dose I was taking in February 2019”; and ¶ 16—
“I have been taking both medications for several years and I am stable on these medications.”
23
eventually.” Furthermore, neither Dare’s statements nor his testimony indicates that he has ever
been “unstable,” whether he was taking his medication as prescribed or self-weaning.
Most importantly, none of these statements involve facts material to the court’s analysis
of the EEOC’s disability discrimination claim. For purposes of this litigation, the only time frame
when Dare’s stability on his medication is pertinent is the time period when Dare applied for
employment with Dragon Rig in 2019. None of these contentions about whether Dare was
self-weaning at the time of his deposition in July 2022 call into question his stability on his
medications at the time of his application in 2019. Neither Dare’s deposition testimony nor his
declaration states that he was undertaking any form of self-weaning in 2019.
Because Dare’s statements regarding his attempted self-weaning or stability on his
medications three or five years after he applied to Dragon Rig are not material to this litigation,
the court does not rely upon them in this Memorandum and Order. Dare’s statements in his
declaration regarding his current stability on his medications therefore do not create a genuine
dispute of material fact that enables Dare to “defeat a motion for summary judgment.” Seigler,
30 F.4th at 477. Thus, this purported conflict does not implicate the type of situation that the
“sham affidavit” doctrine is intended to prevent. See id.; Cardenas v. Amato, No. 1:19-CV-177,
2021 WL 1701258, at *1 n.2 (S.D. Tex. Apr. 29, 2021) (rejecting the defendants’ “sham
affidavit” argument because “[t]he challenged statements . . . [were] not material to the resolution
of the Motion, and in this Order and Opinion, the Court does not rely on these statements.”).
Defendants thus fail to assert any argument that justifies striking Dare’s declaration as a “sham.”
24
b.
Whether Dare’s Declaration States Impermissible Legal Conclusions
Defendants also maintain that Dare’s declaration improperly contains conclusions of law,
particularly regarding Dare’s claims in ¶¶ 5-6, 8, and 14-15 of his declaration that he is
“substantially limited in major life activities.” Defendants point out that, in order to prove that
Dare is disabled under the “actual disability” prong of the ADA, the EEOC must show that Dare
has “a physical or mental impairment that substantially limits one or more [of his] major life
activities . . . .” 42 U.S.C. § 12102(1)(A) (emphasis added). Defendants cite Clark v. America’s
Favorite Chicken Co. for the proposition that the court may not consider Dare’s conclusory
statements because “[u]nsupported allegations or affidavit or deposition testimony setting forth
ultimate or conclusory facts and conclusions of law are insufficient to defeat a motion for summary
judgment.” 110 F.3d 295, 297 (5th Cir. 1997).
In response, the EEOC retorts that “the fact that Dare views his impairments as
substantially limiting . . . is his opinion; it is not a legal conclusion.”14 Here, Defendants
correctly observe that the court may not consider bare conclusions of law when deciding summary
judgment motions. See La. State ex rel. La. Dep’t of Wildlife & Fisheries v. Nat’l Oceanic &
Atmospheric Admin., 70 F.4th 872, 883 (5th Cir. 2023) (quoting Clark, 110 F.3d at 297);
D’Onofrio v. Vacation Publ’ns, Inc., 888 F.3d 197, 208 (5th Cir. 2018) (“The objected-to
statements [in affidavits] are legal conclusions and thus are not competent summary judgment
evidence.” (citing Cutting Underwater Techs. USA, Inc. v. Eni U.S. Operating Co., 671 F.3d 512,
14
The EEOC also appears to confuse this issue of whether Dare’s declaration states impermissible
legal conclusions with the separate issue of whether Dare’s declaration is a “sham.” It asserts that
“Defendants have presented no legal authority for finding an affidavit or declaration to be a ‘sham’ because
it states what could be a legal conclusion.”
25
515 (5th Cir. 2012))); Shultz v. Nat’l Union Fire Ins. Co. of Pittsburgh, ___ F. Supp. 3d ____,
No. 23-678, 2023 WL 7329093, at *3 (E.D. La. Nov. 7, 2023) (“[A]ffidavits setting forth
‘ultimate or conclusory facts and conclusions of law’ are insufficient to either support or defeat
a motion for summary judgment.” (quoting Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216
(5th Cir. 1985))).
The court therefore agrees that Dare may not rely on legal conclusions to establish that the
issues he identifies constitute “substantial limitations” on one or more of his “major life activities”
because this is a key component of the EEOC’s prima facie case of disability discrimination and
thus one of the questions that must be decided either on summary judgment or, if genuine disputes
of material fact remain, by the trier of fact. Accordingly, the court will not consider Dare’s bare
assertions of “substantial limitations” on “major life activities” when deciding the current motions.
The court will, however, consider the underlying facts that Dare mentions in support of these
ultimate legal conclusions—such as that his ability to function, learn, concentrate, think,
communicate, and work are impacted when his impairments are untreated—as such statements are
not legal conclusions and are thus not improper.
3.
The EEOC’s Prima Facie Case of Disability Discrimination
The ADA is a federal antidiscrimination statute designed to remove barriers which prevent
qualified individuals with disabilities from enjoying the same employment opportunities that are
available to individuals without a disability. See 42 U.S.C. §§ 12101-12113; PGA Tour, Inc. v.
Martin, 532 U.S. 661, 674-75 (2001); Clark v. Dep’t of Pub. Safety, 63 F.4th 466, 470 (5th Cir.
2023); EEOC v. LHC Grp., Inc., 773 F.3d 688, 696 (5th Cir. 2014); 29 C.F.R. § 1630.1. The
ADA was amended in 2008 by the ADA Amendments Act (“ADAAA”), which “primarily focuses
26
on broadening the definition of ‘disability.’” Neely v. PSEG Tex., Ltd. P’ship, 735 F.3d 242, 245
(5th Cir. 2013); see ADA Amendments Act, Pub. L. No. 110-325, 122 Stat. 3553 (2008) (codified
as amended at 42 U.S.C. §§ 12101-12117); Clark v. Champion Nat’l Sec., Inc., 952 F.3d 570,
578 n.15 (5th Cir.) (“Congress expanded the definition of ‘disability’ and instructed courts to
construe that definition ‘broadly.’” (quoting Patton v. eCardio Diagnostics LLC, 793 F. Supp. 2d
964, 968 (S.D. Tex. 2011))), cert. denied, 141 S. Ct. 662 (2020).
Title I of the Act, which covers employment discrimination, provides that “[n]o covered
entity shall discriminate against a qualified individual on the basis of disability in regard to job
application procedures, the hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and privileges of employment.” 42
U.S.C. § 12112(a); see Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S.
171, 179-80 (2012); Raytheon Co. v. Hernandez, 540 U.S. 44, 46 (2003); Mueck v. La Grange
Acquisitions, L.P., 75 F.4th 469, 483 (5th Cir. 2023). “The ADA seeks 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.” Cleveland, 526 U.S. at 801 (citing 42 U.S.C. § 12101(a)(8), (9)); see Ariza v.
Loomis Armored US, LLC, 132 F. Supp. 3d 775, 786-87 (M.D. La. 2015). Employees asserting
claims under Title I of the ADA are required to follow the procedures applicable to Title VII
actions, including the timely filing of an EEOC charge. See 42 U.S.C. § 12117(a); Melgar v.
T.B. Butler Publ’g Co., Inc., 931 F.3d 375, 378 (5th Cir. 2019).
The plaintiff may present either direct evidence of disability discrimination or employ the
indirect method of proof utilized in other types of employment discrimination cases. Gosby v.
27
Apache Indus. Servs., Inc., 30 F.4th 523, 525 (5th Cir. 2022) (citing Nall, 917 F.3d at 340); see
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). “In cases in which the plaintiff
produces only circumstantial evidence, we proceed under the McDonnell Douglas burden shifting
framework,” which “first requires the employee to establish a prima facie case of discrimination.”
Gosby, 30 F.4th at 525-26 (citing Goudeau v. Nat’l Oilwell Varco, L.P., 793 F.3d 470, 474 (5th
Cir. 2015); LHC Grp., Inc., 773 F.3d at 694); see Clark, 952 F.3d at 582. To establish a prima
facie case of employment discrimination under Title I of the ADA, the plaintiff must demonstrate
that:
(1)
he has a “disability”;
(2)
he was qualified for the position; and
(3)
he was subject to an adverse employment action because of his disability.
Gosby, 30 F.4th at 526 (citing Nall, 917 F.3d at 341); Clark, 952 F.3d at 582.
a.
The EEOC Cannot Establish Its Case Through Direct Evidence
In its response to Defendants’ motion, the EEOC alleges that Defendants’ concession that
they revoked Dare’s offer based on his prescription medications constitutes direct evidence of
discrimination because the decision-makers—Bennett and Brown—admitted that they knew the
medications in question were used to treat opioid use disorder and anxiety. The Fifth Circuit
defines “direct evidence” as “evidence which, if believed, proves the fact without inference or
presumption.” Clark, 952 F.3d at 579 (quoting Brown v. E. Miss. Elec. Power Ass’n, 989 F.2d
858, 861 (5th Cir. 1993)). “A statement or document which shows ‘on its face that an improper
criterion served as a basis—not necessarily the sole basis, but a basis—for the adverse employment
action [is] direct evidence of discrimination.’” Id. (quoting Herster v. Bd. of Supervisors of La.
28
State Univ., 887 F.3d 177, 185 (5th Cir. 2018)). In Clark, the Fifth Circuit held that, where the
plaintiff “fail[ed] to point to any statement or document that directly and expressly link[ed] his
disability to a decisionmaker’s choice to terminate him,” and instead relied on “generalized
knowledge about his diabetes and the termination itself,” his evidence required the fact-finder “to
make an inference.” Id. at 580-81; see Kitchen v. BASF, 952 F.3d 247, 252 (5th Cir. 2020)
(holding that “[f]iring [the plaintiff] for arriving to work under the influence of alcohol is not
equivalent to firing [the plaintiff] because of a prejudice against alcoholics,” as “[a]n inferential
leap is required to arrive at the conclusion [the employer] discharged [the plaintiff] out of
discriminatory animus against him as an alcoholic”); Nall, 917 F.3d at 341 (determining that the
comment “people with Parkinson’s don’t get better” did not constitute direct evidence of disability
discrimination because it “could simply be an observation about the disorder” and, in order “[t]o
be evidence of animus, the comment requires an inference that the irreversible nature of
Parkinson’s disease was the reason why [the plaintiff] would not be returning to work”).
The EEOC argues that the present case involves direct evidence of discrimination because
Defendants’ conclusion that Dare posed a safety risk due to his medication use, in spite of the fact
that Bennett, Brown, and Dr. Starkey had never spoken with or examined Dare, “implicates that
the decision was based on Dare’s disabilities and the unsubstantiated fears associated with the
medications used to treat those disabilities” (emphasis added). Defendants maintain, however, that
the EEOC relies on evidence that contains “no reference or connection to Dare’s alleged
disabilities.”
Instead, Defendants argue, the EEOC’s evidence requires inferences that:
(1) Bennett’s and Brown’s general knowledge of Dare’s medications and their potential uses
enabled them to deduce Dare’s precise impairments that required him to take these medications;
29
and (2) Bennett and Brown further extrapolated that Dare’s impairments were severe enough to
limit one or more of his major life activities. Indeed, Defendants point out that the EEOC itself
states that an “implication” is necessary to reach this conclusion.15 The court thus agrees with
Defendants that the EEOC fails to demonstrate that the evidence connects Defendants’ revocation
of Dare’s offer to his purported disabilities without requiring one or more inferential leaps. As
a result, the EEOC has not established that it can prove its case through direct evidence.
b.
Whether Dare Has a Disability
The ADA defines a disability as: “(A) a physical or mental impairment that substantially
limits one or more of the major life activities of such individual; (B) a record of such an
impairment; or (C) being regarded as having such an impairment.”16 42 U.S.C. § 12102(1);
Lyons, 964 F.3d at 302 n.11; Delaval v. PTech Drilling Tubulars, L.L.C., 824 F.3d 476, 479 n.2
(5th Cir. 2016); 29 C.F.R. § 1630.2(g)(2) (describing these as the “actual disability,” “record of,”
and “regarded as” prongs).
15
The EEOC’s reliance on United States Equal Employment Opportunity Commission v. T&T
Subsea, LLC (“T&T”) is unavailing. 457 F. Supp. 3d 565, 570-71 (E.D. La. 2020). In T&T, there was
no dispute that the employer was aware of the plaintiff’s disability because the plaintiff specifically
informed his employer’s HR director “of his diagnosis [of colorectal cancer] and treatment plan.” Id. at
569; see id. at 574 (“[The employer] admits that it terminated [the plaintiff] and refused to rehire him
because of his cancer and treatment.”). In contrast, the present case hinges on a dispute as to whether
Defendants’ decision-makers—Bennett and Brown—were aware of Dare’s specific disabilities and revoked
his offer because of these disabilities. Specifically, in order for the EEOC to succeed in proving its
disability discrimination claim, the fact-finder must infer that, because Bennett and Brown admitted that
they were generally aware that methadone and Xanax could be used to treat addiction and anxiety, they
deduced that Dare was prescribed these medications to treat these specific impairments and revoked his
offer as a result. Thus, T&T does not support the EEOC’s direct-evidence argument.
16
The EEOC agrees in its response to Defendants’ motion for summary judgment that it is not
alleging that Dare was “regarded as” disabled.
30
i.
Whether Dare Has an Actual Disability
The ADA regulations further restrict the meaning of physical and mental impairment to:
(1)
Any physiological disorder or condition, cosmetic disfigurement, or
anatomical loss affecting one or more body systems, such as neurological,
musculoskeletal, special sense organs, respiratory (including speech organs),
cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic,
lymphatic, skin, and endocrine; or
(2)
Any mental or psychological disorder, such as an intellectual disability
(formerly termed “mental retardation”), organic brain syndrome, emotional or
mental illness, and specific learning disabilities.
29 C.F.R. § 1630.2(h)(1)-(2). Furthermore, the ADA instructs that “[a]n impairment that is
episodic or in remission is a disability if it would substantially limit a major life activity when
active.” 42 U.S.C. § 12102(4)(D).
“[N]ot every impairment will constitute a disability.” 29 C.F.R. § 1630.2(j)(1)(ii); see
Mueck, 75 F.4th at 479 (“Neither the Supreme Court nor this court has recognized the concept
of a per se disability under the ADA, no matter how serious the impairment; the plaintiff still must
adduce evidence of an impairment that has actually and substantially limited the major life activity
on which he relies.” (quoting Griffin v. United Parcel Serv., Inc., 661 F.3d 216, 223 (5th Cir.
2011))); Burch v. Coca-Cola Co., 119 F.3d 305, 316 (5th Cir. 1997) (holding that alcoholism is
not a disability per se), cert. denied, 522 U.S. 1084 (1998). “Thus, even a plaintiff who suffers
from a condition such as alcoholism or drug addiction—or is perceived as suffering from such a
condition—must demonstrate that the condition substantially limits, or is perceived by his
employer as substantially limiting, his ability to perform a major life function.” Zenor v. El Paso
Healthcare Sys., Ltd., 176 F.3d 847, 860 (5th Cir. 1999); see Mueck, 75 F.4th at 482-83 (holding
that the plaintiff had “put forth evidence raising a triable issue of fact as to whether his alcoholism
31
amount[ed] to a disability” where he testified that “[w]hen he drank, he drank excessively, either
to the point of passing out or to where he was too sick to drink any more,” and “during these
binges, his major life activities of thinking, concentrating, and caring for himself would be
substantially impacted—he would not shower, brush his teeth, clean, eat healthily, or follow a
consistent sleep schedule, and would often drink to the point of unconsciousness”). Furthermore,
“[t]he determination of whether an impairment substantially limits a major life activity shall be
made
without
regard
to
the
ameliorative
effects
of
mitigating
measures
such
as . . . medication . . . .” 42 U.S.C. § 12102(4)(E)(i)(I); see 29 C.F.R. § 1630.2(j)(1)(vi); see
also MX Grp., Inc. v. City of Covington, 293 F.3d 326, 339 (6th Cir. 2002) (holding the fact that
methadone treatment ameliorated drug addiction as it was meant to did not deprive recovering drug
addicts of the ADA’s protection).
Importantly, “the relevant time for assessing the existence of a disability is the time of the
adverse employment action.” Jennings v. Towers Watson, 11 F.4th 335, 344 (5th Cir. 2021)
(quoting EEOC v. Chevron Phillips Chem. Co., L.P., 570 F.3d 606, 618 (5th Cir. 2009)).
Moreover, “the term ‘qualified individual with a disability,’ as used in the ADA, does not refer
to an employee’s future ability to perform the essential functions of his position. Instead, the
provisions of the ADA are “formulated entirely in the present sense, framing the precise issue as
whether an individual ‘can’ (not ‘will be able to’) perform the job with reasonable
accommodation.” Ellis v. Shannon Med. Ctr., No. Civ. A. 6:01-CV-091-C, 2002 WL 31947822,
at *4 (N.D. Tex. Oct. 25, 2002) (quoting Myers v. Hose, 50 F.3d 278, 283 (5th Cir. 1995)).
The ADA defines major life activities as “includ[ing], but not limited to, caring for
oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting,
32
bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and
working.” 42 U.S.C. § 12102(2)(A). It also specifies that “a major life activity also includes the
operation of a major bodily function, including but not limited to, functions of the immune system,
normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory,
endocrine, and reproductive functions.” Id. § 12102(2)(B).
The ADA, however, does not define “substantially limits,” but the EEOC’s regulations
under the ADA provide significant guidance. Hale v. King, 642 F.3d 492, 500 (5th Cir. 2011)
(citing Chevron Phillips Chem. Co., 570 F.3d at 614). Under those regulations, an impairment
is considered a disability if it “substantially limits the ability of an individual to perform a major
life activity as compared to most people in the general population.” 29 C.F.R. § 1630.2(j)(1)(ii).
A disability need not, however, “prevent, or significantly or severely restrict, the individual from
performing a major life activity.” Id. Indeed, the term “‘[s]ubstantially limits’ is not meant to
be a demanding standard” and “shall be construed broadly in favor of expansive coverage.” Id.
§ 1630.2(j)(1)(i). “[D]istrict courts within this circuit routinely consider a plaintiff’s testimony,
without more, sufficient to create a genuine dispute of material fact regarding substantial
limitation.” Williams v. Tarrant Cnty. Coll. Dist., 717 F. App’x 440, 448 (5th Cir. 2018).
Defendants and the EEOC both seek summary judgment on the EEOC’s disability
discrimination claim. Defendants first argue that they are entitled to summary judgment
because the EEOC cannot demonstrate that Dare is actually disabled.
Specifically,
Defendants argue that the EEOC has failed to provide any evidence to corroborate the
allegation in its complaint that Dare’s opioid use disorder and anxiety “substantially limit a
33
major life activity, brain function.”17 Defendants contend that neither the testimony of Dare’s
medical providers nor his medical records demonstrate that Dare was substantially limited in
“brain function” or any other major life activities.18 Additionally, Defendants claim that the
EEOC cannot establish that Dare is actually disabled because, during his deposition, Dare
testified that he had not been diagnosed with a learning disability or functional disorder and
that he did not have any memory issues. Defendants also maintain that the EEOC cannot show
that Dare’s “brain function” was substantially limited because he “actively denied any such
insinuation” by testifying that he was “physically” and “emotionally and mentally able to
17
Defendants assert no argument regarding whether either of Dare’s diagnosed conditions—anxiety
and opioid use disorder—are “impairments” under the ADA. Instead, the thrust of Defendants’ argument
is that Dare cannot establish the first element of his prima facie case because he has failed to provide any
evidence that either of his impairments substantially limits a major life activity.
18
Defendants also argue that because the only “major life activity” that the EEOC pleaded in its
complaint was “brain function,” “any statements or arguments about other alleged limitations [are]
irrelevant.” Defendants cite no authority for the proposition that the EEOC may only provide evidence
regarding major life activities that are specifically enumerated in the complaint. In response, the EEOC
attempts to circumvent Defendants’ argument by contending that all of the activities referenced in Dare’s
declaration—such as his abilities to function, learn, concentrate, think, communicate, and work—are
“driven by ‘brain function,’ and the ability of the brain to regulate thought processes and emotions.”
In any event, the Fifth Circuit has indicated that, at the summary judgment stage, a plaintiff may
properly present evidence related to major life activities that were not specifically identified in the
complaint. In Mueck, the district court held that the plaintiff’s failure “to specify in his complaint which
specific major life activities were impacted by his alcoholism” provided an “alternative ground on which
to grant summary judgment” in favor of the defendant. 75 F.4th at 482 n.8. The Fifth Circuit rejected
the district court’s reasoning, noting that “typically a deficiency in the pleadings results in the dismissal
of the case—and an opportunity to amend—not a decision on the merits in favor of the defendant.” Id.
The Fifth Circuit went on to hold that because the plaintiff’s response to the motion for summary judgment
had “both articulated the major life activities in which he was substantially limited and provided evidence
demonstrating that he was so limited,” “any deficiency in the complaint did not warrant summary judgment
on the merits in favor of [the defendant].” Id. In other words, the Fifth Circuit indicated that even where
a complaint does not specifically identify the “major life activities” at issue, the plaintiff may remedy this
defect at the summary judgment stage by specifying and providing evidence of the limitations. Thus,
particularly in light of Defendants’ dearth of evidence to support their argument, the court concludes it may
appropriately consider the portions of the EEOC’s evidence that pertain to major life activities beyond
“brain function.”
34
work” in both the year prior to and the year following his application to Dragon Rig in 2019.
Lastly, Defendants claim that Dare cannot demonstrate that he was “actually disabled” because
his methadone and Xanax prescriptions alleviated the impacts of his impairments.
The EEOC retorts that, during his deposition testimony, Dare did not “actively den[y]
any such insinuation” that his brain function was substantially limited. In fact, it maintains,
Dare never testified that he was not disabled or that his impairments did not impact a major
life activity. The EEOC then relies upon Dare’s declaration to rebut Defendants’ summary
judgment motion and to provide support for its own summary judgment motion.19
Specifically, in his declaration, Dare states that when untreated, his anxiety impacts his
abilities to function, learn, concentrate, think, communicate, and work. The EEOC argues that
19
The additional evidence that the EEOC cites in support of this issue generally fails to explain
how Dare is substantially limited in major life activities. For example, although the EEOC argues that
Dare’s medical records constitute “indisputable evidence of his disabilities,” as Defendants point out, the
EEOC fails to provide any specific citations to Dare’s medical records or otherwise explain how their
contents demonstrate that Dare’s impairments substantially limit any major life activities. Additionally,
in its sur-reply, the EEOC cites portions of Dare’s deposition testimony where he briefly discussed his
impairments, but neither of these sections sheds light on any “substantial limitations” that Dare might
experience as to his brain function (or any other major life activity). See (#92-6, at 11:23-12:10; 65:8-17).
Although the EEOC also references sections of deposition testimony from Dare’s treating physicians,
specifically Dr. Natalie Carroll (“Dr. Carroll”), the medical director at Dare’s MAT program, and Dr.
Hopper, Dare’s psychiatrist, the cited testimony does not appear to discuss any substantial limitations that
Dare personally experiences as a result of his impairments. Instead, the testimony merely confirms that
Dare had “panic disorder” and “severe anxiety” and receives “addiction treatment.” While the EEOC
identifies portions of Dr. Hopper’s testimony where he describes how anxiety can affect patients as a
general matter, it is unclear whether Dr. Hopper is specifically describing how Dare’s anxiety specifically
impacts him. See (#92-10, 114:12-115:9) (“A lot of people don’t know that anxiety is actually a more
disabling diagnosis than is depression. More people with anxiety become impaired and unable to live a
life than people with depression, typically. . . . [P]eople with overwhelming anxiety simply quit living life.
They don’t go anywhere. They don’t do anything.”). The only portion of Dr. Hopper’s testimony where
he appears to describe specifically any substantial limitations that Dare himself experiences because of his
anxiety is when he mentions Dare’s experience with nightmares. See (#92-10, 115:14-17 (“Look at how
many times [Dare] refers to intrusive memories or nightmares about finding his dead father. You know
that—that kind of anxiety is often right underneath the surface all day every day.”). The medical
providers’ testimony is, thus, largely unrevealing in regard to how Dare is substantially limited in major
life activities as a result of his opioid use disorder and anxiety.
35
“[a]ll of these activities are driven by ‘brain function,’ and the ability of the brain to regulate
thought processes and emotions.” Furthermore, Dare avers in his declaration that when untreated,
his anxiety can cause him to hyperventilate, sweat, tremble, suffer gastrointestinal issues, have
difficulty concentrating or thinking, experience a sense of impending danger or doom, suffer panic
attacks, feel weak or tired, have difficulty sleeping, and experience urges to avoid his anxiety
triggers. Dare’s declaration further indicates that his “anxiety has improved while [he has] been
in treatment, but [he] still need[s] Xanax to treat [his] anxiety and to allow [him] to function
without the symptoms” detailed above.
As for his opioid use disorder, Dare explains in his declaration that when untreated, this
disorder affects his ability to care for himself, learn, concentrate, think, communicate, and work
because he has difficulty concentrating and learning new things, experiences trouble sleeping, and
feels restless, agitated, and volatile, in addition to suffering diarrhea, nausea, and vomiting.
Dare’s methadone treatment, however, “has decreased or eliminated [his] symptoms related to
opioid withdrawal.”
Dare also notes that “without treatment and without the use of both
methadone and Xanax, [he has] and would still experience” the effects of his impairments. He
avers that “[w]hen untreated, [his] [opioid use disorder] contributes substantially to [his] anxiety
and vice versa.”
The court first addresses Defendants’ assertion that the EEOC cannot establish that Dare
is actually disabled due to his testimony that he does not have a learning disability, a functional
disorder, or memory issues. Defendants’ argument on this point misapprehends the standard for
determining whether an impairment “substantially limits” a major life activity. Indeed, the
“substantially limits” standard “is not meant to be a demanding standard,” and “shall be construed
36
broadly in favor of expansive coverage.” 29 C.F.R. § 1630.2(j)(1)(i). Defendants’ apparent
attempt to add a requirement that the substantial limitation on a major life activity results in a
formal diagnosis of either a “functional disorder” or a learning disorder—which can, under certain
circumstances, be a disability in and of itself—is both circular and inconsistent with the expansive
standard for determining whether a disability exists. Thus, Defendants’ argument that Dare cannot
demonstrate that he suffers “substantial limitations” because he has not been diagnosed with a
learning disability or “functional disorder” is baseless.
Next, Defendants argue that Dare’s declaration presents an “irreconcilable juxtaposition”
because Dare avers that he has “worked as a welder all [his] adult life” without causing any
“incident, accident, or injury” while simultaneously claiming that he suffered substantial
limitations to major life activities, including his ability to work, until he began taking methadone
and Xanax in 2014 and 2015, respectively. Defendants maintain that the EEOC “cannot have it
both ways.” They claim that if Dare was able to work as a welder before he began taking
medication for his impairments, then he could not have been substantially limited in brain
function. If, on the other hand, Dare could not work before he began taking methadone and
Xanax about nine years ago, Defendants contend that the EEOC “has repeatedly and significantly
misrepresented Dare’s work history.”
The EEOC responds that Defendants fail to understand that “the ability to work and being
an individual with disabilities are not mutually exclusive,” emphasizing that “[t]he evidence that
Dare’s disabilities were substantially limiting to his ability to work does not mean he was
prevented from working at all.” The court agrees with the EEOC. As the EEOC points out
elsewhere, an individual’s impairment “need not prevent, or significantly or severely restrict, the
37
individual from performing a major life activity in order to be considered substantially limiting.”
29 C.F.R. § 1630.2(j)(1)(ii).
Therefore, because “working” is a “major life activity,” an
individual can still have the ability to work while simultaneously having an impairment that is
“substantially limiting.”20 See id. § 1630.2(i)(1)(i), (j)(1)(ii). In other words, while Dare
might have found it difficult to work due to the unmitigated effects of his opioid use disorder
and anxiety before he began taking methadone and Xanax, this does not necessarily mean that
he could not work at all. Indeed, the fact that Dare’s work history apparently consists of a
patchwork of sporadic odd jobs, contract work, and periods of self-employment appears
consistent with his claims that he found it difficult to work as a result of his impairments.
Additionally, Defendants insist that Dare was not “actually disabled” at the time he applied
to Dragon Rig because the court must consider the mitigating effects of Dare’s medications, and
Dare avers that his methadone and Xanax prescriptions have “decreased or eliminated” the
symptoms that purportedly limit his major life activities. Defendants are, however, mistaken as
to the law regarding the role that mitigating measures play in the disability analysis. As explained
above, “[t]he determination of whether an impairment substantially limits a major life activity shall
be made without regard to the ameliorative effects of mitigating measures such
as . . . medication . . . .” 42 U.S.C. § 12102(4)(E)(i)(I) (emphasis added); see 29 C.F.R.
§ 1630.2(j)(1)(vi). Thus, in order to determine whether Dare’s opioid use disorder and anxiety
are “disabilities,” the fact-finder must consider how these impairments substantially limit Dare’s
major life activities when he is unmedicated and thus unaided by the ameliorative benefits of
20
Notably, this rule also undercuts Defendants’ related argument that Dare could not have been
“actually disabled” at the time he applied to work for Dragon Rig because he testified that he was
physically, mentally, and emotionally prepared to work.
38
methadone and Xanax.21
See Cerda de Ruiz v. Almanza Villarreal Forwarding, LLC, No.
7:22-CV-00434, 2024 WL 420150, at *6 n.8 (S.D. Tex. Feb. 5, 2024) (rejecting the defendant’s
argument that “diabetes cannot be a disability if the plaintiff takes corrective measures, such as
insulin,” as “run[ning] strictly against [the] instructions” in the EEOC’s regulations); Palardy v.
AT&T Servs., Inc., No. 4:21-CV-00626-SDJ-CAN, 2022 WL 21783976, at *4 (E.D. Tex. May
31, 2022) (explaining that, where the plaintiff was deaf or, at a minimum, had suffered hearing
loss, “[t]he Court may not consider the ameliorative effects of Plaintiff’s cochlear implant in
determining whether he is disabled.”); Fulbright v. Union Pac. R.R. Co., No. 3:20-CV-2392BK, 2022 WL 975603, at *2-4 (N.D. Tex. Mar. 31, 2022) (concluding that plaintiff’s sleep
disorder constituted a disability in part because the court could not consider the ameliorative
21
The cases upon which Defendants rely to suggest otherwise are outdated and inapposite.
Defendants apparently overlook that in 2008, the ADAAA “explicitly overrule[d]” the prior requirement
that mitigating measures be considered when evaluating the existence of a disability and instead
“mandate[d] that the ‘determination of whether an impairment substantially limits a major life
activity . . . be made without regard to the ameliorative effects of mitigating measures . . . .” Kemp v.
Holder, 610 F.3d 231, 236 (5th Cir. 2010) (quoting ADAAA, sec. 2(b)(3), sec. 4(a), § (4)(E)(i), 122 Stat.
3553 (2008)). The cases that Defendants cite apply pre-ADAAA precedent.
In particular, Defendants rely upon Milton v. Texas Department of Criminal Justice for the
proposition that the determination of whether an impairment is substantially limiting is “an individualized
assessment that considers the effects of any mitigating measures taken by the individual.” 707 F.3d 570,
573 (5th Cir. 2013). Defendants ignore, however, the critical footnote in Milton where the Fifth Circuit
explained that because “[t]he events giving rise to [the plaintiff’s] case all took place before the enactment
of [the ADAAA]” and the ADAAA does not apply retroactively, it analyzed the plaintiff’s disability
discrimination claim under pre-ADAAA precedent. Id. at 573 n.2; see Mueck, 75 F.4th at 481
(characterizing Milton as “inapposite” because “it applied pre-ADAAA law”). The same rule applies in
Chevron Phillips Chemical Co., the other case cited by Defendants. 570 F.3d at 606. Indeed, the plaintiff
initially filed Chevron Phillips Chemical Co. in September 2005—nearly four years before the ADAAA
took effect. Id. at 612; see ADAAA, sec. 8, 122 Stat. 3553 (2008) (“This Act and the amendments made
by this Act shall become effective on January 1, 2009.”).
In the case at bar, Dare applied for the position with Dragon Rig in 2019, approximately a decade
after the ADAAA took effect. Thus, there is no dispute that the ADAAA applies to this case. Because
the ADAAA requires that determinations of disability be made “without regard to the ameliorative effects
of mitigating measures,” Defendants’ argument that the court should consider the effects of Dare’s
medications directly contradicts the controlling law and is thus unavailing.
39
effects of the plaintiff’s Trazodone prescription). As a result, Dare’s statements in his
declaration about how his opioid use disorder and anxiety impacted him when untreated (and
would continue to impact him without the benefit of his medications) provide salient evidence
of how his impairments affect him absent “the ameliorative effects of mitigating measures.”22
In the same vein, because the court may not consider the ameliorative effects of Dare’s
methadone and Xanax prescriptions, Dare’s testimony that he was physically, mentally, and
emotionally prepared to work when he applied to Dragon Rig does not prevent him from proving
that he was “actually disabled.” Importantly, Dare never stated that he would have been prepared
to work as a welder without the benefit of his medications. Rather, Dare testified that he was
stable on both of his medications during this time period. Therefore, in order to determine
whether Dare was “actually disabled,” the court must consider how, without the ameliorative
effects of methadone and Xanax, Dare would have been impacted by his impairments at the time
he applied to Dragon Rig.23
22
As a related point, the EEOC correctly notes that the mere fact that Dare was receiving treatment
from an MAT (and thus was not suffering withdrawal symptoms or other effects of his impairment) does
not preclude him from establishing that he was “actually disabled” as a result of his opioid disorder at the
time he applied to Dragon Rig. Indeed, while coverage under the ADA does not extend to individuals
“currently engaging in the illegal use of drugs,” the statute covers an individual who “has successfully
completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of
drugs, or has otherwise been rehabilitated successfully and is no longer engaging in such use,” as well
as an individual who “is participating in a supervised rehabilitation program and is no longer engaging
in such [illegal drug use].” 42 U.S.C. § 12114(a), (b)(1)-(2); see 29 C.F.R. § 1630.3(b)(1)-(2).
Accordingly, Dare’s participation in an MAT program—and the fact that he was not experiencing
symptoms of either withdrawal or addiction as a result of his treatment—at the time he applied to
Dragon Rig does not prevent him from establishing that he was “actually disabled.”
23
Dare’s testimony that he was prepared to work at the time he applied to Dragon Rig also does
not prevent him from establishing that he was “actually disabled” because, “following the ADAAA’s
passage, an impairment need not be ‘permanent or long-term’ to qualify as a disability.” Mueck, 75 F.4th
at 480-83 (determining that the plaintiff had produced sufficient evidence to raise “a triable issue of fact
as to whether his alcoholism amount[ed] to a disability,” despite the fact that “the impairments [the
plaintiff] suffered during a drinking binge were short-term and not permanent”). Thus, an impairment
40
Accordingly, upon consideration of the aforementioned arguments, the EEOC has
provided sufficient evidence, specifically in the form of Dare’s declaration, to overcome
Defendants’ motion for summary judgment. Nevertheless, because the court may not consider
Dare’s legal conclusions in his declaration that he experienced “substantial limitations” as a
result of his impairments, viewing the evidence in the light most favorable to Defendants,
genuine disputes of material fact remain as to the existence and extent of the effects of Dare’s
impairments. In other words, fact issues persist as to whether the issues that Dare attributes
to his impairments—e.g., difficulty learning, concentrating, thinking, sleeping, feeling
nervous, and experiencing gastrointestinal issues—in fact exist or constitute “substantial
limitations” on major life activities. Accordingly, the court concludes that whether Dare is
disabled under the ADA is a disputed issue of material fact best left for the trier of fact to
determine.
ii.
Whether Dare Has a Record of a Disability
“An individual has a record of a disability if the individual has a history of, or has been
misclassified as having, a mental or physical impairment that substantially limits one or more
major life activities.” 29 C.F.R. § 1630.2(k)(1); see Cruz, 405 F. Supp. 3d at 689 n.7 (noting
that the EEOC’s regulations apply “the same broad definition of ‘substantially limits’ to the
‘record of’ prong” (citing 29 C.F.R. § 1630.2(k)(2)). “There are many types of records that could
potentially contain this information, including but not limited to, education, medical, or
employment records.” 29 C.F.R. Pt. 1630, App. § 1630.2(k). Although an individual may “be
protected under the ‘record of’ prong . . . even if a covered entity does not specifically know about
need not constantly or consistently affect an individual in order to constitute a disability under the ADA.
41
the relevant record,” in order for the covered entity to be liable for discrimination, the individual
asserting an ADA claim under the “record of” prong “must prove that the covered entity
discriminated on the basis of the record of the disability.” Id.
Here, the EEOC claims that Dare has a “record of diagnosis and treatment for [opioid use
disorder].” To argue that Dare is not disabled under the “record of” a disability prong,
Defendants rely on their aforementioned contentions that Dare cannot establish that he “has a
record of being substantially limited” in any major life activities. As explained above, a genuine
issue of material fact exists as to whether Dare’s opioid use disorder substantially limited one or
more of his major life activities. This genuine issue of material fact likewise precludes summary
judgment on the question of whether Dare can establish that he has a record or history of an
impairment that limits a major life activity.
c.
Whether Dare Was Qualified for the Position
i.
Whether Dare Possessed the Experience and Skills to
Qualify Him for the Position
On an ADA claim, it is the EEOC’s burden to prove that Dare was qualified. Moss v.
Harris Cnty. Constable Precinct One, 851 F.3d 413, 418 (5th Cir. 2017) (quoting Jenkins v. Cleco
Power, LLC, 487 F.3d 309, 315 (5th Cir. 2007)). The ADA defines a “qualified individual” as
“an individual 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); see Weber v. BNSF Ry. Co., 989 F.3d 320, 323 (5th Cir. 2021); Neely, 735 F.3d at
245-46. “The ADA prohibits discrimination on the basis of disability ‘to ensure that [such]
individuals are not denied jobs or other benefits because of the prejudiced attitudes or the
ignorance of others.’” Deas v. River W., L.P., 152 F.3d 471, 482 (5th Cir. 1998) (quoting Sch.
42
Bd. of Nassau Cnty. v. Arline, 480 U.S. 273, 284 (1987)), cert. denied, 527 U.S. 1035 (1999).
Nevertheless, “[t]he ADA is not read as ‘requiring affirmative action in favor of individuals with
disabilities, in the sense of requiring that disabled persons be given priority in hiring or
reassignment over those who are not disabled.” Allen v. Babcock & Wilcox Tech. Servs. Pantex,
LLC, No. 2:12-CV-00225-J, 2013 WL 5570192, at *8 (N.D. Tex. Oct. 9, 2013) (quoting
Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir. 1995), cert. denied, 516 U.S. 1172
(1996)); accord Toronka v. Cont’l Airlines, Inc., 411 F. App’x 719, 726 n.7 (5th Cir. 2011);
Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 810 (5th Cir. 1997), cert. denied, 522 U.S.
1115 (1998); see Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1094 (5th Cir. 1996) (“The
law does not require affirmative action in favor of individuals with disabilities. It merely prohibits
employment discrimination against qualified individuals with disabilities, no more and no less.”).
Hence, “[w]hile the ADA focuses on eradicating barriers, the ADA does not relieve a
disabled employee or applicant from the obligation to perform the essential functions of the job.”
Foreman, 117 F.3d at 808 (citing 29 C.F.R. § 1630, App. Background); see Burch v. City of
Nacogdoches, 174 F.3d 615, 621 (5th Cir. 1999); Franklin v. City of Slidell, 969 F. Supp. 2d 644,
655 (E.D. La. 2013); Galvan v. City of Bryan, 367 F. Supp. 2d 1081, 1090 (S.D. Tex. 2004).
“To the contrary, the ADA is intended to enable disabled persons to compete in the work-place
based on the same performance standards and requirements that employers expect of persons who
are not disabled.” Foreman, 117 F.3d at 808; see Franklin, 969 F. Supp. 2d at 655; Galvan, 367
F. Supp. 2d at 1090. “The determination of qualification is two-fold: (1) whether the individual
meets the necessary prerequisites for the job, such as education, experience, skills, and the like;
and (2) whether the individual can perform the essential job functions, with or without reasonable
43
accommodation.” Foreman, 117 F.3d at 810 n.14 (citing 42 U.S.C. § 12111(8); 29 C.F.R.
§ 1630.2(m)); see Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 862 (7th Cir.), cert.
denied, 546 U.S. 1033 (2005); Hebert v. Ascension Par. Sch. Bd., 396 F. Supp. 3d 686, 699
(M.D. La. 2019). Therefore, to be considered a qualified individual, the plaintiff must show that:
(1) he can perform the essential functions of the job despite his disability; or (2) if he is unable to
perform the essential functions of the job, that a reasonable accommodation by the employer would
enable him to perform those functions. Weber, 989 F.3d at 324 (citing Turco, 101 F.3d at 1093);
Clark v. Charter Commc’ns, L.L.C., 775 F. App’x 764, 766 (5th Cir. 2019).
The essential functions of a job “are those that ‘bear more than a marginal relationship to
the job at issue.’” Thompson v. Microsoft Corp., 2 F.4th 460, 467 (5th Cir. 2021) (quoting
Chandler v. City of Dallas, 2 F.3d 1385, 1393 (5th Cir. 1993), cert. denied, 511 U.S. 1011
(1994)); Nall, 917 F.3d at 342; LHC Grp., Inc., 773 F.3d at 697. In determining the essential
functions of a position, “consideration shall be given to the employer’s 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); see Clark, 952 F.3d at 582 n.48; Nall,
917 F.3d at 342. Evidence of whether a particular function is essential includes, but is not limited
to: (1) the employer’s judgment as to which functions are essential; (2) written job descriptions
prepared before advertising or interviewing applicants for the job; (3) the amount of time spent
on the job performing the function; (4) the consequences of not requiring the incumbent to perform
the function; (5) the terms of a collective bargaining agreement; (6) the work experience of past
incumbents in the job; and/or (7) the current work experience of incumbents in similar jobs.
44
Credeur v. Louisiana, 860 F.3d 785, 792 (5th Cir. 2017) (quoting 29 C.F.R. § 1630.2(n)(3)); see
Thompson, 2 F.4th at 467.
Defendants and the EEOC both argue that there is no genuine dispute of material fact as
to whether Dare possessed the requisite experience and skills to qualify him for the welding
position when he applied to Dragon Rig in 2019. In their motion, Defendants contend that the
EEOC has failed to present evidence that Dare actually had thirteen years of experience as a
welder as alleged in the EEOC’s complaint. In fact, Defendants assert that the information they
obtained from Dare’s alleged employers (including individuals or entities that Dare purportedly
worked for on a contracted basis) “disproves this allegation.”24 Defendants further insist that
Dare’s statement in his declaration that he worked as a welder for thirty years is “contradicted by
his own deposition testimony, employment records, and tax records,” including an Itemized
Statement of Earnings from the Social Security Administration (#63-7) stating that the
administration has “no record of earnings” for Dare from the years 2017-2021.25
The EEOC responds to Defendants’ motion by emphasizing that Blaylock, as Dragon Rig’s
foreman and the employee who extended the conditional offer of employment to Dare, testified
24
The court’s analysis of this issue neither references nor relies upon Defendants’ evidence
regarding employers for whom Dare allegedly worked following his application to Dragon Rig in 2019.
Dare’s employment history subsequent to his application is irrelevant to the determination of whether Dare
was qualified for the position at the time he applied.
25
Defendants also argue that the EEOC failed to provide evidence regarding Dare’s welding
qualifications, work performance, or history of on-the-job accidents. In response, the EEOC points to
Dare’s statement in his declaration that he “[has] not been discharged or disciplined from any welding job
for cause and [he has] never had an incident, accident, or injury, no[r] [has he] caused any injury to
anyone else while working as a welder.” The EEOC claims that it is “self-evident” that no other records
or documentation exist to confirm Dare’s lack of workplace accidents or to prove that Dare has not been
disciplined or fired from welding positions. Defendants do not identify any contradictory evidence that
creates a genuine dispute of material fact on this particular point.
45
that he thought Dare possessed the necessary skills and experience to qualify him for the job.
Blaylock also noted that Dare’s resume indicated that Dare had “specialized” skills in steel
welding and stainless steel welding.26 In its own summary judgment motion, the EEOC likewise
relies upon Dare’s statement in his declaration that he has “worked as a welder all [his] adult life,”
as well as Blaylock’s confirmation that he considered Dare to be qualified for the welding position
at Dragon Rig.
Upon consideration of the aforementioned evidence, the court concludes that genuine
disputes of material fact exist as to Dare’s experience as a welder and, thus, whether he was
qualified for the position with Dragon Rig. In particular, the Social Security Administration’s
statement of no record of earnings for at least two years before Dare applied to work at Dragon
Rig, as well as Dare’s testimony that he had not filed a tax return since 2012 and that he
voluntarily chose to be unemployed from 2017-2018, is difficult to square with both Dare’s
testimony that he has “welded all [his] life” and his statement in his declaration that he has
“worked as a welder all [his] adult life.” As another example, while Dare’s resume lists Oilfield
Repair Specialists as his employer from September 2007 to January 2014,27 an email from a
representative for this company (#63-9) states vaguely that “[a]t one point [Dare] was contracted
[there] as a VENDOR an independent welder but that was over 8 years ago” and that the company
“NEVER had [Dare] as an employee.” In other words, there appear to be discrepancies between
26
Defendants contend that Blaylock’s initial assessment of Dare’s qualifications should be
discounted because Blaylock “did not have the benefit of Dare’s drug test results or Dr. Starkey’s safety
warning.” The court also observes that Blaylock was, at the time, presumably unaware of the
discrepancies with regard to Dare’s employment history that Defendants later discovered.
27
Notably, Dare testified in his deposition that although he could not recall precise dates, his best
memory of when he worked for Oilfield Repair Specialists was from 2013 until 2016 or 2017. (#63-6,
at 79:1-17).
46
Dare’s characterization of his work history and Defendants’ evidence of his employment-related
records that preclude the court from reaching a conclusion as a matter of law regarding Dare’s
qualifications to work for Dragon Rig as a welder in 2019. As a result, neither Defendants nor
the EEOC are entitled to summary judgment on the issue of whether Dare possessed the requisite
skills and experience to be qualified for the welding position.
ii.
Whether Dare Was Qualified to Perform the Essential
Functions of a Safety-Sensitive Position
Beyond arguing that Dare did not meet the necessary prerequisites for the welding position
at Dragon Rig, Defendants also maintain that Dare is not qualified to perform the essential
functions of a safety sensitive position.28 An employee is not “qualified” for a position if, in
occupying that position, he would pose a direct threat, or “a significant risk of substantial harm
to the health or safety of [himself] or others that cannot be eliminated or reduced by reasonable
accommodation.” 29 C.F.R. § 1630.2(r); see 42 U.S.C. § 12111(3); EEOC v. E.I. Du Pont de
Nemours & Co., 480 F.3d 724, 731 (5th Cir. 2007) (“The ADA does not protect an employee who
poses a direct threat to the health and safety of [himself] or others in the workplace.”). By
regulation,
28
Defendants’ evidence establishes that they consider the welding job at Dragon Rig to be a
safety-sensitive position. In particular, Defendants cite Dragon Rig’s Welder Job Position (#63-27), which
describes the position as requiring, inter alia, “work[ing] with radiant heat sources in hot temperatures and
heavy humidity with no air circulation for long periods of time”; maintaining “awkward body postures”
while welding in various directions, including “flat, horizontal, vertical, overhead”; “operat[ing] heavy
equipment”; “climb[ing] up and down a ladder or work structure”; and being “[m]entally aware and
competent.” Defendants further note that Dragon Rig’s New Hire Policy & Procedure (#63-29) states that
“the legal use of prescribed drugs is permitted on the job only if it does not impair the employee’s ability
to perform the essential functions of the job effectively and in a safe manner that does not endanger other
individuals in the workplace.” The EEOC does not dispute that Defendants consider the welding position
to be safety sensitive.
47
[t]he determination that an individual poses a “direct threat” shall be based on an
individualized assessment of the individual’s present ability to safely perform the
essential functions of the job. This assessment shall be based on a reasonable
medical judgment that relies on the most current medical knowledge and/or on the
best available objective evidence.
29 C.F.R. § 1630.2(r); see Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 86 (2002); Nall, 917
F.3d at 342. In its interpretive guidance, the EEOC notes that “relevant evidence” that an
individual poses a direct threat “may include input from the individual with a disability, the
experience of the individual with a disability in previous similar positions, and opinions of medical
doctors, rehabilitation counselors, or physical therapists who have expertise in the disability
involved and/or direct knowledge of the individual with the disability.” 29 C.F.R. Pt. 1630, App.
§ 1630.2(r).
The Fifth Circuit has explained that an “individualized assessment” is “not a categorical
conclusion that an employee with a particular disability cannot safely perform a job.” Nall, 917
F.3d at 344. “The jurisprudence on individualized assessments cautions employers against relying
on ‘perceptions of a disability based on myth, fear or stereotype’ and requires them to evaluate
employees in their ‘actual state.’” Sutherland v. Edison Chouest Offshore, Inc., No. 19-414, 2020
WL 5436654, at *8 (E.D. La. Sept. 10, 2020) (quoting Rodriguez v. ConAgra Grocery Prods.
Co., 436 F.3d 468, 481 (5th Cir. 2006)). “Whether an employer has properly determined that
a person poses a direct threat depends on ‘the objective reasonableness of [the employer’s]
actions.’” Nall, 917 F.3d at 342 (quoting Bragdon v. Abbott, 524 U.S. 624, 650 (1998)).
Notably, “a correct conclusion is not required to satisfy the objective reasonableness standard.”
Id. at 346 n.8.
48
A dispute has arisen among the Circuit Courts of Appeals regarding which party bears the
burden of proof on this issue. See Branham v. Snow, 392 F.3d 896, 906 n.5 (7th Cir. 2004)
(observing the split); Hutton v. Elf Atochem N. Am., Inc., 273 F.3d 884, 893 & n.5 (9th Cir.
2001) (“Because it is an affirmative defense, the employer bears the burden of proving that an
employee constitutes a direct threat.”); EEOC v. Amego, Inc., 110 F.3d 135, 144 (1st Cir. 1997)
(“[I]t is the plaintiff’s burden to show that he or she can perform the essential functions . . . and
is therefore ‘qualified.’ Where those essential job functions necessarily implicate the safety of
others, plaintiff must demonstrate that she can perform those functions in a way that does not
endanger others.”). The Fifth Circuit has declined to address the issue. See Nall, 917 F.3d at 342
n.5 (“In Rizzo v. Children’s World Learning Ctrs., Inc., 213 F.3d 209 (5th Cir. 2000) (en banc),
we declined to reach the question of which party bears the burden of establishing that an
individual’s disability poses a direct health or safety threat to the disabled employee or others. We
do so again here.”).
(a).
If Direct Threat Is an Affirmative Defense,
Defendants Have Not Waived It
In its response to Defendants’ motion and in its own motion, the EEOC first argues that
direct threat is an affirmative defense, and Defendants have waived this defense by failing either
to plead it in their answer or raise it within a “pragmatically sufficient time” under Federal Rule
of Civil Procedure 8(c).
Defendants respond that—even if direct threat is considered an
affirmative defense, which they contest—Rule 8(c) does not require them to have explicitly used
the phrase “direct threat” in their answer. Instead, they argue, the question is whether their
answer provided the EEOC with “fair notice of their contention that Dare was a safety risk and
could not safely perform the essential functions of a welder.” Defendants cite various paragraphs
49
of their answer that, they contend, provide sufficient notice of this contention. In response, the
EEOC insists that Defendants did not provide fair notice of their direct threat defense because
“they failed to plead any facts to support such a defense, such as the steps they took to make such
an assessment.”
“Failure to timely plead an affirmative defense may result in waiver and the exclusion of
the defense from the case.” Wise v. Wilkie, 955 F.3d 430, 439 n.37 (5th Cir. 2020) (quoting
LSREF2 Baron, L.L.C. v. Tauch, 751 F.3d 394, 398 (5th Cir. 2014)); FED. R. CIV. P. 8(c); see
W. Tex. Agriplex v. Mid-Continent Cas. Co., No. 5:03-CV-199-C, 2004 WL 1515122, at *7-8
(N.D. Tex. July 7, 2004) (striking defenses where defendant did not cite specific insurance policy
exclusions in its answer). Nevertheless, “a technical failure to comply precisely with Rule 8(c)
is not fatal.” Levy Gardens Partners 2007, L.P. v. Commonwealth Land Title Ins. Co., 706 F.3d
622, 633 (5th Cir. 2013); see Skipper v. A&M Dockside Repair, Inc., 430 F. Supp. 3d 170, 177
(E.D. La.), aff’d, 829 F. App’x 1 (5th Cir. 2020), cert. denied, 141 S. Ct. 2569 (2021). Instead,
so long as the defendant raises an affirmative defense at a “pragmatically sufficient time” and the
plaintiff is not prejudiced in its ability to respond, a district court has discretion to consider the
affirmative defense. Taylor v. HD & Assocs., L.L.C., 45 F.4th 833, 838 (5th Cir. 2022) (quoting
Tauch, 751 F.3d at 398). As the Fifth Circuit has explained, “[t]he main concern is ‘unfair
surprise,’ so we do not permit litigants to be able to ‘lie behind a log’ and ‘ambush a plaintiff.’”
Crown Castle Fiber, L.L.C. v. City of Pasadena, 76 F.4th 425, 439 (5th Cir. 2023) (quoting
Rogers v. McDorman, 521 F.3d 381, 385 (5th Cir. 2008)), cert. denied, ___ S. Ct. ___, No.
23-698, 2024 WL 674840 (U.S. Feb. 20, 2024). District courts should look at “the overall
context of the litigation” to determine whether a defendant can raise affirmative defenses not
50
pleaded in its answer. Smith v. Travelers Cas. Ins. Co. of Am., 932 F.3d 302, 309 (5th Cir. 2019)
(quoting Pasco ex rel. Pasco v. Knoblauch, 566 F.3d 572, 577 (5th Cir. 2009)).
In some instances, courts within the Fifth Circuit have concluded that an affirmative
defense is properly before the court when raised for the first time in response to a motion for
summary judgment. See Bradberry v. Jefferson County, 732 F.3d 540, 553 (5th Cir. 2013)
(holding that the affirmative defense raised in the defendant’s response was not waived where the
plaintiff filed a reply and “had the opportunity to respond and made no objection”); Word of Life
Church of El Paso v. State Farm Lloyds, EP-17-CV-00049-DCG, 2017 WL 9292185, at *1 (W.D.
Tex. Nov. 8, 2017) (reasoning that the affirmative defense raised for the first time in the
defendant’s reply in support of its own motion for summary judgment was not waived in part
because trial was still over five months away and the plaintiffs had the opportunity to respond by
filing a sur-reply); In re Hensley, 551 B.R. 792, 805-06 (Bankr. E.D. Tex. 2015) (indicating that
the defendant could have avoided waiving his affirmative defenses if he had included them in his
response to the plaintiffs’ motion for summary judgment); Van Alstyne v. GC Servs., LP, No.
H-08-3175, 2009 WL 10695068, at *14 (S.D. Tex. Dec. 11, 2009) (determining that, by including
the affirmative defense in its response to the plaintiff’s motion for summary judgment, the
defendant raised its defense “at a pragmatically sufficient time” and did not prejudice the
plaintiff’s ability to respond).
Here, assuming arguendo that direct threat is an affirmative defense, the court concludes
that the EEOC had sufficient notice of the application of the direct threat analysis to this case
despite Defendants’ failure to reference “direct threat” explicitly in their answer. As Defendants
point out, their answer denied that Dare was a “qualified individual” in ¶ 20 and admitted that
51
“the MRO noted that Dare’s medications have a sedating effect which precluded him from
working in a safety sensitive position or operating equipment” in ¶¶ 23-24. Furthermore, the
EEOC alleged in its own complaint at the outset of this litigation that “the MRO informed
Defendants that . . . [Dare’s] prescribed medications and their dosages would impair his ability
to perform a safety-sensitive position or to operate equipment.” Thus, the EEOC was on notice
that, given the MRO’s warning explicitly mentioning safety concerns, this case would implicate
a direct threat analysis, which evaluates an employee’s or potential employee’s “risk of substantial
harm to the health or safety of the individual or others.” 29 C.F.R. § 1630.2(r) (emphasis added).
In addition, the court observes that in the parties’ Joint Rule 26(f) Conference Report (#6), filed
on
January
5,
2022,
Defendants
explicitly
asserted
that
“Dare’s
condition
and
prescriptions . . . posed a direct threat of harm to Dare and his potential coworkers.”
Indeed, although Defendants’ answer never expressly uses the phrase “direct threat,” the
EEOC nevertheless anticipated the application of the direct threat analysis to this case, as
evidenced by its inclusion of an argument addressing the concept of direct threat in its own
summary judgment motion. Notably, the EEOC prefaces this argument by emphasizing that it was
“not clear if Defendants [were] attempting to ‘back door’ a direct threat defense since they did not
plead this defense.” Nevertheless, the EEOC gleaned enough information from Defendants’
contentions about Dare’s purported inability to perform a safety-sensitive job—coupled with
Defendants’ clear discussion of “direct threat” in their contribution to the Rule 26(f) report—that
it had the foresight to address the direct threat analysis proactively in its own motion.
Moreover, the EEOC had ample opportunity to respond to Defendants’ direct threat
arguments not only in its reply brief, but also in its response and sur-reply. Although the EEOC
52
complained that it could not determine from Defendants’ answer what “steps” Defendants alleged
that they took to complete the “individualized assessment” required to determine that Dare was
a direct threat, the EEOC was supplied with this information in Defendants’ reply brief, and the
EEOC explicitly addressed and challenged these allegations in its sur-reply.
Additionally, as in Word of Life Church of El Paso, Defendants raised the direct threat
“defense” in a “pragmatically sufficient time” because they asserted it in their summary judgment
motion when trial was still months away. 2017 WL 9292185, at *1. Specifically, Defendants
filed their summary judgment motion on July 19, 2023. Under the Sixth Amended Scheduling
Order (#58) then in effect, the Final Status Conference was not set to occur until over four months
later, on December 1, 2023. Notably, under the present scheduling order (#112), the Final Status
Conference is now set for May 3, 2024, providing the EEOC with an additional five months to
prepare to counter this defense at trial.
Thus, even if the court were to conclude definitively that direct threat is an affirmative
defense for which Defendants bear the burden of proof, the court is satisfied that the EEOC had
sufficient notice of the defense to prevent it from being unfairly surprised. Therefore, to the
extent direct threat is an affirmative defense, Defendants have not waived it.
(b).
The Court Need Not Decide Who Bears the Burden
of Proof on the Direct Threat Issue
In any event, the court need not address which party bears the burden of proof in this
situation. Even if the EEOC has the burden of proving that Dare was qualified to perform this job
safely, the EEOC has presented sufficient evidence to, at a minimum, create a genuine dispute of
material fact on this issue. In its summary judgment motion, the EEOC points out that Defendants
have not produced any evidence controverting Dare’s statements in his declaration that he has
53
never been disciplined or discharged from any welding job for cause; he has never had an incident,
accident, or injury while working as a welder; and he has never caused injury to anyone else
during his experience as a welder. Likewise, the EEOC argues that Defendants cannot provide
any evidence to contradict Dare’s statements in his declaration that he has never experienced any
significant side effects from his medications and that his medications neither sedate him nor
negatively impact his ability to perform as a welder.
As further support for its position, the EEOC references testimony from Dare’s treating
providers concerning their observations of Dare’s affect and capabilities while taking his
medications. First, both Dr. Carroll and Dr. Hopper testified that, as a general matter, individuals
taking both methadone and Xanax can perform safety-sensitive jobs, including welding. Dr.
Hopper also testified that Dare has never exhibited “an impaired mental status that could be
attributed to either a mental illness or a medication problem,” confirming that Dare has never
appeared sedated, impaired, or uncoordinated. Mata, who observes Dare at his monthly visits to
his MAT program, testified that Dare does not exhibit or report any side effects from his
medications and that he is “not sedated when he comes in” to the clinic.29 The EEOC also notes
that Blaylock—Defendants’ only employee who met with Dare in person—testified that nothing
stood out to him about Dare’s appearance, Dare did not exhibit any signs of sedation, and nothing
29
Defendants attempt to discredit the EEOC’s evidence by emphasizing that Dare’s providers’
opinions were based on little to no interactions with Dare in an office setting and were not informed by
personal knowledge of Dragon Rig’s workplace, the essential functions of a welder at Dragon Rig, a “deep
understanding of what welders do,” observations of Dare working, or speaking with any of Dare’s
employers. Such criticisms, however, challenge the weight that should be afforded to the providers’
testimony, and the court may not weigh the evidence or evaluate its credibility at the summary judgment
stage. Reeves, 530 U.S. at 150; Seigler, 30 F.4th at 476.
54
about his interactions with Dare gave him pause about hiring him or indicated that Dare would
pose a safety threat in the workplace.
Thus, the EEOC argues that it has proffered evidence demonstrating that Dare “did not
pose a significant risk of substantial bodily harm to himself or others.” As discussed in more
detail below, the court concludes that, assuming arguendo that the EEOC bears the burden of
proof on this issue, it has provided sufficient evidence to create a genuine dispute of material fact.
(c).
Whether Dare Posed a “Direct Threat”
Turning now to the substance of the direct threat analysis, the EEOC does not dispute that
Defendants considered the welding job at Dragon Rig to be a safety-sensitive position. Instead,
the EEOC argues that Defendants may not rely upon the direct threat analysis because their
decision to revoke Dare’s employment offer was entirely dependent upon the opinion of Dr.
Starkey, Defendants’ MRO, despite the fact that Dr. Starkey “did not examine Dare [and] did not
discuss the effects [Dare’s] medications had on him or even review the requirements of the
position before declaring Dare should not be hired for the position.” The EEOC emphasizes that
no one—including Dr. Starkey—interacted with, examined, or “specifically assess[ed] [Dare’s]
present ability to perform the job duties on the medications” before Defendants revoked his offer.
In fact, both Bennett and Brown confirmed during their depositions that they personally had no
knowledge or information regarding: whether Dare’s medications impaired his ability to perform
the essential functions of the welding job in an effective and safe manner; Dare’s ability to perform
the job; Dare’s workplace accident history; or Dare’s experiences with previous employers.
Bennett and Brown’s decision was instead influenced solely by Dr. Starkey’s opinion and warning,
which, the EEOC argues, was not based on an individualized assessment.
55
In response, Defendants criticize the EEOC for “distort[ing]” an “individualized
assessment” to require a medical exam, arguing that the EEOC cites no authority mandating a
“more stringent assessment” than the analysis that Dr. Starkey performed. Instead, Defendants
urge, the individualized assessment requirement merely obligates employers to consider an
individual’s specific circumstances, rather than making a “blanket” or “categorical”
determination. Defendants distinguish their situation from Rodriguez, where the Fifth Circuit held
that a company’s “blanket determination that it would not hire any diabetic . . . regardless [of]
whether the particular diabetic might be able to perform the essential functions of the job at issue”
failed to assess the effect of the plaintiff’s diabetes in an individualized manner. 436 F.3d at
482-84. Unlike the employer in Rodriguez, Defendants argue, they did not have “a blanket policy
of denying employment to anyone on a combination of prescription methadone and Xanax.”30
30
The EEOC argues that the opinion that no one taking Dare’s dosages of medications could work
in a safety-sensitive position in Defendants’ workplace—which Dr. Starkey apparently believed and which
Defendants’ expert witness, Dr. Andre Chen (“Dr. Chen”), endorsed—amounts to Defendants’
implementation of an illicit “general or blanket policy.” It cites persuasive authority for the proposition
that a blanket policy of mandating a drug test and rejecting those who test positive for methadone without
further inquiry would violate the ADA. See Godwin v. George Washington, LP, No. 22-1066, 2022 WL
18027827, at *2 (W.D. Pa. Dec. 30, 2022) (concluding that “an employer who has a blanket policy of
requiring all applicants to take a drug test (which they ‘had to pass or else’) and then rejecting those who
tested positive for methadone, without further inquiry, would violate the ADA”); EEOC v. Hussey Copper
Ltd., 696 F. Supp. 2d 505, 520-21 (W.D. Pa. 2010) (determining that genuine disputes of material fact
remained regarding whether the employer conducted an individualized assessment because the employer
relied on the recommendation of a doctor who did not meet with or personally examine the job applicant,
based his opinion on “speculation that there may be future manifestations of side effects from [the
applicant’s] use of methadone,” and “failed to ask [the applicant] himself whether he had ever experienced
methadone-related complications or inquire with his drug counselor . . . and treating doctor . . . about their
opinions concerning the effects of his methadone use,” and it was “disputed” whether the doctor
considered the applicant’s “complete medical and work history”). Defendants refute this accusation by
insisting that Dr. Starkey’s consideration of Dare’s drug test results and prescriptions constituted an
individualized assessment because he took Dare’s personal circumstances into account. Due to the court’s
determination that genuine disputes of material fact remain as to the direct threat issue based on other
grounds, it need not reach the question of whether Defendants’ decision was based on a prohibited
“blanket” policy.
56
Instead, Defendants assert that they conducted an individualized assessment because Dr. Starkey
reviewed Dare’s drug test results and Dare’s prescriptions for methadone and Xanax, which
showed the dosage and frequency of intake for each medication, and applied his knowledge of
these medications and the duties of workers at Dragon Rig to provide a safety warning to
Defendants.31
The EEOC maintains that Dr. Starkey’s review of Dare’s drug test results and prescriptions
does not constitute an individualized assessment. The EEOC emphasizes that the key question on
summary judgment is “whether there is any evidence in the record that creates a genuine issue of
material fact as to whether [the employer] meaningfully assessed [the plaintiff’s] ability to perform
his job safely and reasonably concluded that he posed a direct threat.” T&T, 457 F. Supp. 3d at
575 (quoting Nall, 917 F.3d at 344). At most, the EEOC argues, the information that Dr. Starkey
gleaned from Dare’s drug test results and prescriptions “might lead a reasonable employer to
conclude that Dare could possibly pose a direct threat, thereby requiring an individualized
assessment, not that [Dare] actually posed such a threat.” The EEOC criticizes Defendants for
31
As an alternative argument, Defendants contend that Dr. Starkey’s work in family medicine and
occupational medicine since 1988, his experience as an MRO for over ten years and as Dragon Rig’s
occupational medicine doctor for approximately fifteen years, as well as his knowledge about methadone,
Xanax, and their respective effects and interactions demonstrate that “it was reasonable for [Defendants]
to rely” on Dr. Starkey’s warning. In response, the EEOC asserts that it is “immaterial” that Defendants
and the MRO had a longstanding relationship, as the ADA’s prohibition on discriminating against a
qualified individual with a disability extends to any “participat[ion] in a contractual or other arrangement
or relationship that has the effect of subjecting a covered entity’s qualified applicant or employee with a
disability to . . . discrimination . . . .” See 41 U.S.C. § 12112(b)(2). Thus, the EEOC argues, the
contractual relationship between Defendants and Dr. Starkey did not obviate Defendants’ responsibility
to comply with the ADA, including making an individualized assessment of Dare in order to determine
whether he posed a direct threat. The court concurs. The mere fact that Dr. Starkey’s experience and the
longevity of their contractual relationship might have rendered Defendants’ reliance on his opinion
“reasonable” does not obviate the requirement that Defendants’ determination be based upon an
“individualized assessment” that “relie[d] on the most current medical knowledge and/or on the best
available objective evidence,” as required under 29 C.F.R. § 1630.2(r).
57
“deferr[ing] to Dr. Starkey’s opinion without first pausing to assess the objective reasonableness
of his conclusion,” emphasizing that Bennett and Brown testified that they had no knowledge about
whether Dare could safely perform the essential functions of the welding job and considered Dr.
Starkey’s recommendation for only about fifteen minutes before concluding that they could not
hire Dare. The EEOC also identifies various portions of Bennett’s and Brown’s testimony
demonstrating that the two decision-makers were not knowledgeable about the role of an MRO or
the information upon which Dr. Starkey based his safety warning.
The EEOC likens the present case to T&T, where, before terminating the plaintiff, the
employer asked its own physician if an employee would be qualified to continue working as a
commercial diver following his cancer treatment, “and the physician, without reviewing [the
employee’s] medical records or examining him, concluded that [the employee] would be
disqualified from diving.” Id. at 571. The court concluded that there were “genuine issues of
material fact regarding whether [the employer] meaningfully assessed [the employee’s] ability to
perform his job safely based on the best available objective evidence and reasonably concluded that
[the employee] posed a direct threat” in part because the employer’s “reli[ance] on the advice of
a physician who did not examine [the employee] or his medical records before firing him” could
lead a reasonable jury to “find that [the employer] did not make an individualized assessment of
[the employee’s] actual ability to perform safely the essential functions of the job.” Id. at 576.
The court further elaborated that “[w]hether [the employer] relied on the best available objective
evidence of [the employee’s] condition is a disputed issue of material fact because [the employee’s]
treating physician cleared him for diving shortly after [the employer] fired him and [the employer]
refused to rehire [the employee] based upon the treating physician’s clearance.” Id.
58
As the EEOC points out, like the employer in T&T, Defendants relied solely on the advice
of a physician who did not examine Dare or his medical records. Notably, however, Dr. Starkey’s
assessment was based on slightly more information about Dare than the company physician’s
assessment in T&T, in that he reviewed Dare’s prescriptions, whereas the company physician in
T&T was merely informed that the employee was undergoing “cancer treatment.” Id. at 571.32
Nevertheless, T&T indicates that a court may find a physician’s failure to examine an employee
or review his medical records raises a genuine dispute of material fact regarding whether the
employer based its decision on an individualized assessment of the employee’s actual ability to
perform safely the essential functions of the job.
Notably, while Defendants make much of the fact that the EEOC fails to point to any
authority holding that an individualized assessment requires a medical exam, Defendants similarly
do not cite any cases where courts have concluded as a matter of law that the direct threat defense
was satisfied by an employer’s evidence that it relied upon an MRO’s opinion that considered
solely an employee’s drug test results and prescriptions. In fact, the very cases upon which
Defendants rely for the propositions that “the question is not whether the employer was correct
about the risk the employee posed, but instead concerns whether the employer’s decision was
objectively reasonable based upon the information before it” and “[r]easonable doctors of course
can disagree . . . . [t]hat is why the law requires only that the employer rely on an ‘objectively
reasonable’ opinion, rather than an opinion that is correct” involved far more thorough
32
T&T’s facts are also distinguishable in that, here, although Dare’s treating physicians testified
that they believed Dare could perform the job of a welder and nothing in his affect or physical presentation
gave them cause for concern, they did not perform any particular official assessment to “clear” Dare to
work in a welding position.
59
assessments of the plaintiffs and their abilities. See Michael v. City of Troy Police Dep’t, 808
F.3d 304, 309 (6th Cir. 2015); Goode v. BNSF Ry., Inc., No. 4:18-CV-319-Y, 2020 WL
1527864, at *6 (N.D. Tex. Mar. 20, 2020).
For example, in Michael, the employer relied on the opinions of two physicians, one of
whom examined the plaintiff “for more than seven hours in her office and spent another nine hours
reviewing her test data and preparing her report,” in addition to reviewing the job description for
the plaintiff’s position. 808 F.3d at 308. The second physician similarly “examined [the plaintiff]
for 90 minutes in his office, reviewed [the other doctor’s] report and her entire file, including her
test results,” and prepared his own report. Id. Furthermore, beyond the medical opinions, the
employer also based its decision on the plaintiff’s “own conduct” that “raised grave concerns
regarding [the plaintiff’s] judgment.” Id. at 309. Notably, in upholding the district court’s
conclusion that the medical opinions upon which the employer relied were objectively reasonable,
the United States Court of Appeals for the Sixth Circuit distinguished a prior case “where the
doctor’s opinion was only ‘two scribbled lines at the bottom of a boilerplate evaluation form.’”
Id. at 308 (quoting Holiday v. City of Chattanooga, 206 F.3d 637, 646 (6th Cir. 2000)). Michael
is, thus, distinguishable from the facts of the case at bar, where no physician examined Dare or
his medical records and it is undisputed that Defendants’ decision was not based on Dare’s
conduct, as Dr. Starkey, Brown, and Bennett never interacted with Dare prior to revoking his
offer and Blaylock did not observe any behavior during Dare’s interview that gave him any
reservations about hiring Dare.
In Goode, the court determined that there was no genuine dispute of material fact on the
direct-threat issue in part because the plaintiff “presented no contrary evidence demonstrating that
60
[the employer’s] doctors’ conclusions were incorrect, much less objectively unreasonable.” 2020
WL 1527864, at *6. One of the employer’s doctors based her opinion upon a review of the
plaintiff’s medical records, and the other doctor averred in his declaration that, had he known that
the plaintiff had an implantable cardioverter-defibrillator (“ICD”) at the time of hiring, “he would
have determined that [the plaintiff] was not medically qualified for the . . . position.” Id. at *2,
*4. The plaintiff’s only medical evidence to rebut the employer’s doctors’ conclusions was his
cardiologist’s “general return-to-work release form, indicating that [the plaintiff] may ‘work with
a pacemaker in a safety sensitive situation.’” Id. at *6. Yet, as the district court noted, the
plaintiff had both a pacemaker and an ICD, and his cardiologist’s generic release failed to mention
his ICD “or the risks it presents.” Id. As a result, when “[j]uxtaposed against” the other doctors’
declarations, the plaintiff’s cardiologist’s release was “simply insufficient” to create a genuine
dispute of material fact as to whether the employer’s decision was objectively unreasonable. Id.
The case at bar is distinct from Goode because, here, the EEOC has proffered evidence that
could lead a reasonable jury to conclude that Dr. Starkey’s opinion was not objectively reasonable.
In particular, the EEOC relies on the opinions of its rebuttal expert, Dr. Douglas Martin (“Dr.
Martin”), as well as Dare’s psychiatrist, Dr. Hopper, who both agree that an evaluation of how
a drug (or combination of drugs) affects an individual must be made on an “individualized basis.”
Dr. Hopper testified that such an analysis considers factors like the individual’s metabolism,
“weight, age, height, other medical conditions, [and] the status of [the individual’s] liver.”
Indeed, the EEOC points out that Defendants’ own expert witness, Dr. Chen, admitted during his
deposition that not everyone who takes Xanax and methadone together will experience the side
effects that he ascribed to the medications, and he conceded that a patient’s side effects can be
61
dependent upon the dosages of the medications, as well as the patient’s metabolism, weight, and
tolerance to the medications. The EEOC emphasizes that, in making his determination that Dare
could not safely work in a safety-sensitive position, Dr. Starkey did not consider, much less have
information about, any of these factors—such as Dare’s weight, age, height, liver status,
metabolism rate, and tolerance to his medications—beyond the dosages of Dare’s medications.33
Instead, Dr. Starkey relied solely on Dare’s drug test results and prescriptions, which, as the
EEOC points out, “did not indicate how Dare’s prescribed medications affected him or if they
rendered him unable to safely perform the essential functions of the job.”34
The court thus concludes that, as in T&T, because Dr. Starkey did not examine Dare or
review his medical records before reaching his conclusion that Dare was unable to perform the
position safely, Defendants’ reliance on Dr. Starkey’s opinion could cause a reasonable jury to
“find that [Defendants] did not make an individualized assessment of [Dare’s] actual ability to
33
The other cases that Defendants cite as support that a “more stringent assessment” is not
required are inapposite. See Armitage v. BNSF Ry. Co., No. 4:20-cv-00209, 2021 WL 2805860, at *5
(N.D. Tex. July 6, 2021) (determining that a reasonable jury could conclude that the plaintiff was a
qualified individual before noting that the plaintiff’s arguments that the employer’s physician “could have
conducted neuropsychological testing, field tests, or peer to peer consultations” could not establish the
plaintiff’s prima facie case or show pretext); Teague v. Williamson County, No. 1:18-CV-1098-RP, 2020
WL 2542869, at *10 (W.D. Tex. May 19, 2020) (making no mention of the direct threat analysis and
instead determining that the plaintiff’s allegation that a medical examination “would have cleared [her] of
any further disability” did not demonstrate that the employer “denied her a position because of her
disability”).
34
While the EEOC also maintains that Defendants do not “have a shred of evidence that the
MRO’s conclusion was accurate,” citing testimony from Dare’s medical providers and Blaylock in an
attempt to argue why Dr. Starkey’s conclusion about Dare’s abilities is inaccurate, Defendants correctly
note that it is “immaterial” whether Dr. Starkey’s assessment of Dare’s ability to perform in a
safety-sensitive position was “correct.” See Nall, 917 F.3d at 346 n.8. Rather, the court concludes that
genuine disputes of material fact exist as to the direct threat issue not because it is of the opinion that Dr.
Starkey’s conclusion was inaccurate, but rather because a reasonable jury could determine that Dr. Starkey
did not perform an individualized assessment and did not consider the best available objective evidence,
such as how other factors (like Dare’s weight, tolerance, etc.) impacted Dare’s response to his medications
and thus his ability to perform safely as a welder.
62
perform safely the essential functions of the job,” particularly in light of the evidence offered by
the EEOC that other physicians believe an “individualized assessment” involves considering other
factors specific to the patient beyond merely his medications and dosages. 457 F. Supp. 3d at 576.
The court further concludes that the EEOC’s evidence could also lead a reasonable jury to find that
Dr. Starkey did not rely on the “best available objective evidence” because he did not consider
the aforementioned factors and their effect on Dare before rendering his opinion. Thus, genuine
disputes of material fact remain as to the direct threat issue in this case.
d.
Whether Dare Was Subject to an Adverse Employment Action
Because of His Alleged Disabilities
Under the ADA, the plaintiff must prove that an adverse employment decision was made
“because of his disability.” Nall, 917 F.3d at 341; Williams v. J.B. Hunt Transp., Inc., 826 F.3d
806, 811 (5th Cir. 2016). The ADA does not prohibit adverse action due to a consequence of a
disability, such as being unable to report to work regularly or to perform essential job duties as
a result of an injury or illness. See Weber, 989 F.3d at 325-26; Credeur, 860 F.3d at 793; LHC
Grp., Inc., 773 F.3d at 697; Hypes ex rel. Hypes v. First Com. Corp., 134 F.3d 721, 726-27 (5th
Cir. 1998) (citing 42 U.S.C. § 12112(a)).
Defendants argue in their summary judgment motion that the EEOC has presented no
evidence that their decision-makers—Brown and Bennett—had knowledge of Dare’s purported
disabilities or based their decision to withdraw Dare’s conditional offer of employment on such
knowledge. Defendants point out that Dare never mentioned his drug addiction or any alleged
disability to Blaylock. Additionally, Brown testified that he did not know why Dare was taking
methadone or Xanax and that he was unaware of any disabilities that Dare might have had.
Defendants extrapolate that, because Bennett’s only knowledge about Dare was drawn from his
63
phone call with Brown, Bennett likewise was not aware of Dare’s alleged disabilities. As a result,
Defendants argue, the decision to revoke Dare’s offer was based solely on Dr. Starkey’s safety
warning and was not because of Dare’s purported disabilities.
In response, the EEOC asserts that Dr. Starkey disclosed Dare’s two medications, Xanax
and methadone, to Defendants, and Brown and Bennett testified that they knew what impairments
these medications were used to treat. Specifically, Brown testified that he was aware through
“[p]ublic knowledge” that methadone is commonly used to treat drug addiction and his general
understanding was that Xanax was “used for anxiety or something to that effect.” Similarly,
Bennett testified that he “know[s] Xanax is for anxiety” and “know[s] methadone is used to get
off of, I believe, it’s opiates or maybe, you know, heroin.”35 The EEOC also insists in its own
motion that “[d]iscriminatory animus is further evidenced by the fact that no one ever asked
Blaylock—the only person associated with Defendants who had ever seen or met with Dare—about
Dare as a candidate for the job.” Blaylock testified that, after he was informed that Dare “was
on medication that we couldn’t have in the shop because of the dosage he was taking,” Blaylock
told Dare that “if [he] could get off the medications, [Defendants] could send [Dare] back for
another drug screening.” The EEOC argues that Blaylock’s testimony demonstrates that “the
withdrawal of the job offer was undisputedly linked to Dare’s disability,” as, according to the
EEOC, Blaylock specifically instructed Dare that “he would have to stop taking the medications
he needed to treat his disabilities in order to be able to work as a welder for Defendants.”
35
Although Defendants minimize these statements by characterizing Brown and Bennett as having
merely “general, superficial understandings of what methadone and Xanax are used to treat,” an employer
need not have an in-depth understanding of a disability in order to discriminate on the basis of it.
64
In an effort to argue that the EEOC’s evidence is insufficient to create a genuine dispute
of material fact, Defendants rely on persuasive authority to assert that “[n]umerous courts” have
declined to find actual knowledge of a disability where the employer knew only of a plaintiff’s
injury, symptoms, impairment, or medications underlying the alleged disability. These cases,
however, involved factual circumstances distinct from the current case.36 The court is thus of the
36
The court discusses only the cases that involved an employer’s knowledge of a plaintiff’s
prescription medications, as those are the most pertinent to the case at bar. These cases are, nonetheless,
inapposite. For example, in Prince v. Coca-Cola Bottling Co. United, Inc., where the plaintiff had failed
a drug test at least five years prior to his termination, the court held that “[o]ther than unsubstantiated
speculation,” the plaintiff failed to “produce any evidence establishing that his employer had any
knowledge of a disability, aside from the fact that [the plaintiff] failed a drug test because of prescribed
medication that he was taking.” No. 2:18-CV-1076, 2020 WL 1312467, at *9 (W.D. La. Mar. 18, 2020).
Importantly, it is unclear whether the employer was informed of the plaintiff’s specific prescription
medication. See generally id. The employer instead attributed the plaintiff’s termination to causes
completely unrelated to his drug test, including documented instances of “insubordination,” as well as the
plaintiff’s “engag[ing] in threatening, false, offensive, malicious, and intimidating conduct.” Id. at *4.
Here, in contrast, the adverse employment action immediately followed and resulted from Dare’s
drug test, and Defendants acknowledge that Brown and Bennett were informed of Dare’s precise
medications because Dr. Starkey specifically mentioned methadone and “high dose Xanax” in his warning.
As a final distinguishing characteristic, whereas the plaintiff in Prince also failed to produce any evidence
that he was disabled or regarded as disabled under the ADA, id. at *9, as discussed above, the EEOC has
presented evidence that creates a genuine issue of material fact as to whether Dare was actually disabled.
Thus, Prince fails to persuade the court that the EEOC’s evidence is insufficient to create a genuine dispute
of material fact as to whether Defendants revoked Dare’s offer “because of” his alleged disabilities.
Defendants’ reliance on Bahan v. Louisiana Chapter National Multiple Sclerosis Society is
similarly unavailing. No. 97-2052, 1998 WL 1020797, at *4 (E.D. La. Apr. 29, 1998). In Bahan,
although the plaintiff claimed that “the fact that she suffered from depression and was prescribed
anti-depressant medication was common knowledge” at her place of employment, she failed to offer any
evidence that her employer’s “knowledge of this impairment . . . led to her termination.” Id. The court
determined that the employer’s reasons for her termination—“her poor work performance, poor
management of staff, violations of Chapter policies, and questionable handling of Chapter finances”—were
“fully supported by the evidence.” Id. at *1, *4. Bahan is likewise inapplicable to the case at bar because
Defendants’ basis for revoking Dare’s offer—Dr. Starkey’s safety warning—is inextricably bound up with
Dare’s prescription medications and connected to his alleged disabilities in a manner that the employer’s
references to discrete examples of the plaintiff’s “poor work performance” in Bahan simply were not. Id.
Finally, Moreno v. Sanderson Farms, Inc., is also distinguishable. No. 6:21-cv-00450, 2022 WL
14365901, at *4-5 (E.D. Tex. Oct. 4, 2022), adopted by No. 6:21-cv-00450, 2022 WL 14318618 (E.D.
Tex. Oct. 24, 2022). In Moreno, the court held that “Defendant’s mere knowledge of Plaintiff’s prior
hospitalization for a pulmonary embolism and current prescription to prevent future blood clots does not
support an inference that Defendant regarded her as disabled,” particularly where the plaintiff had failed
to provide any evidence of a disability. Id. In actuality, the employer terminated her because she failed
65
opinion that Brown’s and Bennett’s deposition testimony, coupled with Defendants’
acknowledgment that their decision was based entirely on Dr. Starkey’s warning that specifically
named Dare’s medications, raises a fact question.
The present case is instead more akin to Breaux v. Bollinger Shipyards, LLC, where the
defendant “refused to allow [the plaintiff] to return to work [as a welder] because of his use of
Suboxone”—medication that the plaintiff took to manage his opioid dependency. No. 16-2331,
2018 WL 3329059, at *10, *14 (E.D. La. July 5, 2018). The court determined that this evidence
was sufficient “to allow a reasonable trier of fact to conclude that [the defendant] refused to allow
[the plaintiff] to return to work because of an alleged or perceived disability,” and thus the
defendant was not entitled to summary judgment. Id. at *14. Importantly, the court reached this
conclusion in part because “[t]he disability alleged here [was] not just Plaintiff’s opioid
dependency, but the fact that he must take certain medications, namely Suboxone, to manage the
condition.” Id. Here, while it is not clear that the EEOC is alleging that the fact that Dare must
take certain medications—namely, methadone to manage his opioid use disorder and Xanax to
manage his anxiety—is itself a disability, Dare nevertheless avers in his declaration that “without
to disclose her prescription medications on her “post-offer pre-employment medical form.” Id. In other
words, the plaintiff’s act of deceit by denying her use of prescription medication, rather than the nature
of the medication itself, led to her termination. See id. In fact, the defendant’s corporate representative
explicitly stated that the plaintiff’s medication “would not affect . . . [the plaintiff’s] work.” Id.
Importantly, as in Prince and Bahan, Moreno likewise involved no evidence that the employer was
aware that the plaintiff’s prescription medication could be used to treat a particular disability, in direct
contrast to the EEOC’s evidence here that both Bennett and Brown knew that Xanax was prescribed to treat
anxiety and methadone was prescribed for addiction disorders. See id. at *4. Here, Defendants were
directly influenced by the nature of Dare’s prescription medications and Dr. Starkey’s description of these
medications as “highly sedating.” This evidence presents a much closer factual question than Moreno as
to whether Defendants rescinded Dare’s offer because of his alleged disabilities, particularly given
Bennett’s and Brown’s acknowledgment that they were aware of the particular impairments that Dare’s
medications were ordinarily used to treat.
66
treatment and without the use of both methadone and Xanax, [he has] and would still experience
the substantial limitations to [his] major life activities,” and he “still need[s] Xanax to treat [his]
anxiety and to allow [him] to function.” The court concludes that the current case is analogous
to Breaux because Defendants’ basing their decision on Dare’s prescription medication usage while
having knowledge of the impairments those medications can be used to treat is so closely linked
to Dare’s purported disabilities that the court is unable to determine, as a matter of law, whether
Defendants revoked Dare’s offer because of his alleged disabilities.37
A comparison of the present case to Equal Employment Opportunity Commission v. Steel
Painters further bolsters this conclusion. 433 F. Supp. 3d 989, 1004 (E.D. Tex. 2020). Notably,
the parties dispute the applicability of Steel Painters to this case. In particular, the EEOC
maintains that Steel Painters demonstrates that, contrary to Defendants’ assertion, a plaintiff can
show that an employer discriminated on the basis of an individual’s disability even where the
employer’s decision-maker was not explicitly informed of the individual’s disability. Defendants
argue in response that “there is no factual evidence or legal foundation” indicating that “Brown
and Bennett somehow divined that Dare had a disability” and contend that Steel Painters is
distinguishable because it involved statements related to the employee’s methadone usage that are
not present in the case at bar.
In Steel Painters, the employer terminated a certified industrial painter who was prescribed
methadone to treat his opioid addiction. Id. at 995-96. At the time of his hiring, the painter
37
The EEOC also cites persuasive authority to argue that Defendants “concede that they rescinded
Dare’s job offer because of his disability-based medications,” and such a concession that they took an
adverse employment action because of Dare’s medications “is necessarily acting on the basis of the
impairments.” The court declines to reach such a conclusion as a matter of law, as such a question
regarding Defendants’ motivation for their decision is better posed to the trier of fact.
67
disclosed his methadone prescription on his medical history form. Id. at 996. Subsequently, the
painter’s physician refused to sign the employer’s “Safety Sensitive Employee Medication
Approval Form for Prescription Medication,” citing his clinic’s policy against disclosing patient
information. Id. at 996-97. Although the physician provided the painter with a letter verifying
that it prescribed him methadone and listing a phone number that the employer could call for
additional information, the employer rejected the painter’s request to have the company doctor
evaluate him and ultimately terminated the painter’s employment. Id. The court determined that
“a jury could reasonably conclude that [the painter] was terminated because of his disability”
based on evidence that the employer’s decision-maker informed the painter that “we don’t
normally hire people on methadone” and acknowledged in an email that “she was aware that
methadone is used to treat a disability covered by the ADA.” Id. at 1004. Other evidence also
demonstrated that the decision-maker “had personal experience with a family member who used
or uses methadone to treat addiction.” Id. Notably, no evidence indicated that the employer’s
decision-maker was notified of the specific disability for which the painter was prescribed
methadone; in fact, the decision-maker claimed during her deposition that “she still did not know
the purpose for which methadone is prescribed.” Id. at 1007.
Here, Defendants correctly point out that the record in this case contains no evidence that,
at the time they decided to revoke Dare’s offer, Brown and Bennett made any statements similar
to the decision-maker’s remarks in Steel Painters regarding methadone usage or Defendants’
willingness to hire methadone users. Nonetheless, the EEOC is also correct that this case is
comparable to Steel Painters in that, while Brown and Bennett were never directly informed of
Dare’s disabilities, evidence exists to indicate that they were aware of the disabilities that Dare’s
68
prescription medications could be used to treat. Specifically, Brown’s and Bennett’s admissions
in their deposition testimonies that they were aware that methadone was prescribed to treat
addiction and Xanax was prescribed to treat anxiety is akin to the evidence in Steel Painters that
indicated that the decision-maker equated methadone usage with opioid addiction, such as the
decision-maker’s relative’s experience with taking methadone to treat addiction and the
decision-maker’s acknowledgment in an email that methadone was “used to treat a disability
covered by the ADA.” Id. at 1004. In sum, the evidence in the case at bar is sufficient to create
a genuine dispute of material fact as to whether Brown and Bennett’s knowledge of Dare’s
prescription medications and awareness of the disabilities they could be used to treat led them to
perceive Dare’s disabilities and revoke his offer because of those disabilities.
In reaching this conclusion, the court is guided by the principle that summary judgment is
generally inappropriate when inferences the parties seek to draw deal with questions of motive and
intent. Autobahn Imps., L.P. v. Jaguar Land Rover N. Am., L.L.C., 896 F.3d 340, 350 n.23 (5th
Cir. 2018); see Perry v. H.J. Heinz Co. Brands, L.L.C., 994 F.3d 466, 476 (5th Cir. 2021)
(“[S]ummary judgment is rarely proper when an issue of intent is involved.” (quoting Guillory v.
Domtar Indus. Inc., 95 F.3d 1320, 1326 (5th Cir. 1996))); United States ex rel. Taylor-Vick v.
Smith, 513 F.3d 228, 231 (5th Cir. 2008) (stating that “we hesitate to grant summary judgment
when a case turns on a state of mind determination”). Courts have applied this principle when
denying summary judgment to defendants in employment discrimination cases where genuine
disputes of material fact exist as to whether the plaintiff was discriminated against on the basis of
his or her protected class. See, e.g., Cappel v. La. Dep’t of Transp. & Dev., No. 10-1810, 2012
WL 2990695, at *2 (E.D. La. July 20, 2012) (denying the defendant’s motion for summary
69
judgment on the plaintiff’s age, race, and sex discrimination claims in part because “where the
Defendant’s intent is at issue, it is inappropriate ‘[t]o grant summary judgment because the party’s
state of mind is inherently a question of fact which turns on credibility’” (quoting Int’l Shortstop,
Inc. v. Rally’s, Inc., 939 F.2d 1257, 1265 (5th Cir. 1991), cert. denied, 502 U.S. 1059 (1992)));
see also Whatley v. Hopewell, No. 1:21-CV-01185, 2022 WL 11385995, at *9 & n.27 (W.D. La.
Oct. 19, 2022).
Here, the evidence cited by the EEOC creates a genuine issue of material fact as to whether
Defendants rescinded Dare’s offer because of his alleged disabilities. Viewing the evidence in the
light most favorable to the EEOC, a reasonable jury could conclude that Brown’s and Bennett’s
knowledge of the disabilities that Dare’s medications are ordinarily used to treat led them to reason
that Dare had these disabilities and, in turn, that they could not hire Dare because of his
disabilities. While the court finds that the EEOC’s evidence could lead a reasonable jury to make
this determination, its evidence is nevertheless insufficient to support judgment as a matter of law
in the EEOC’s favor. Indeed, viewing the evidence in the light most favorable to Defendants, a
reasonable jury could take Brown at his word and conclude that Defendants did not base their
employment decision on Dare’s disabilities and, instead, were solely influenced by Dr. Starkey’s
safety warning without any consideration of Dare’s underlying disabilities. Accordingly, a
genuine dispute of material fact remains as to whether Defendants rescinded Dare’s offer of
employment because of his alleged disabilities. Neither Defendants nor the EEOC are entitled to
summary judgment on this issue.
70
e.
The EEOC Is Not Required to Provide Comparator Evidence
Defendants also argue that the EEOC cannot prove its prima facie case because it has failed
to demonstrate that Dare was replaced by a non-disabled person or treated less favorably than
non-disabled employees. Defendants note, however, that Fifth Circuit precedent is unclear as to
whether comparator evidence is a mandatory element of a plaintiff’s prima facie case under the
ADA. The EEOC retorts that it is not required to produce comparator evidence. Instead, it
argues, comparator evidence is simply one means of demonstrating a causal link between the
plaintiff’s disability and the adverse employment action. The court agrees.
Indeed, in LHC Grp., Inc., the Fifth Circuit expressly noted that three lines of cases set
out different requirements for establishing a causal nexus in a disability discrimination case. 773
F.3d at 695. The Fifth Circuit ultimately chose the formulation that required the plaintiff to prove
only: “(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.” Id. at 697 (quoting
Zenor, 176 F.3d at 853). The court reasoned that the line of cases requiring a plaintiff to
demonstrate that he was replaced by or treated less favorably than non-disabled employees “is best
understood as providing one possible way to prove nexus between the employee’s disability and
[his] termination.” Id. at 696 (emphasis added).
In the wake of LHC Grp., Inc., multiple published Fifth Circuit cases analyzing disability
discrimination claims have articulated a prima facie framework that does not require (or even
reference) comparator evidence. See, e.g., Mueck, 75 F.4th at 483-84 (setting out a three-part
prima facie case that excludes any mention of comparator evidence and later stating that “[a]
plaintiff may demonstrate pretext by presenting ‘evidence of disparate treatment or by showing
71
that the employer’s proffered explanation is false or unworthy of credence’” (emphasis added)
(quoting Gosby, 30 F.4th at 527)); Gosby, 30 F.4th at 526-27 (reversing the district court’s
holding that the plaintiff had failed to establish a causal link between her disability and her
termination because “[t]he proximity of [the plaintiff’s] diabetic episode on the job and her
termination was sufficient to constitute a prima facie case”); see also Thompson, 2 F.4th at 470;
Clark, 952 F.3d at 582; Rodriguez v. Eli Lilly & Co., 820 F.3d 759, 765 (5th Cir. 2016).
While Defendants correctly note that other cases since LHC Grp., Inc., have relied on a
prima facie framework that includes comparator evidence, none of these cases explicitly state that
the plaintiff must produce such evidence. See Claiborne v. Recovery Sch. Dist., 690 F. App’x
249, 256-57 (5th Cir. 2017) (explaining that, although the plaintiff purported to offer comparator
evidence, her evidence was insufficient because she could not establish that the alleged comparator
performed the same job duties); Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 230 (5th
Cir. 2015) (noting that the only issue in dispute was whether the plaintiff was “regarded as”
disabled); Hoffman v. Baylor Health Care Sys., 597 F. App’x 231, 235 (5th Cir.) (observing that
the plaintiff “relied solely on such comparator evidence of disparate treatment to satisfy both his
prima facie and pretext showings at the summary-judgment stage”), cert. denied, 577 U.S. 818
(2015).
In fact, as the EEOC points out, Hoffman explicitly states that the ADA
“allow[s]”—rather than requires—“a showing of causation by disparate treatment, that is, by
comparison with employees outside the protected class.” 597 F. App’x at 235 (citing Raytheon
Co., 540 U.S. at 53).
Thus, after reviewing the Fifth Circuit’s post-LHC Grp., Inc., precedent, the court concurs
with its sister court’s assessment that a plaintiff “does not have to provide evidence of a
72
comparator to establish a prima facie case of disability discrimination under the ADA.” Iqbal v.
City of Pasadena, 542 F. Supp. 3d 566, 571 n.2 (S.D. Tex. 2021). As a result, the EEOC’s
failure to produce comparator evidence neither precludes it from establishing its prima facie case
nor warrants summary judgment in Defendants’ favor.
4.
Defendants’ Legitimate, Nondiscriminatory Reason for Revoking Dare’s
Conditional Offer of Employment
Because the EEOC has provided sufficient evidence to establish a prima facie case of
disability discrimination, a rebuttable presumption of discrimination arises, and the burden of
production shifts to Defendants to articulate a legitimate, nondiscriminatory reason for their
actions. Mueck, 75 F.4th at 483; Gosby, 30 F.4th at 526; Clark, 952 F.3d at 588. While the
employer need not prove that its actions were motivated by the legitimate reason, it must produce
some evidence in support of its proffered rationale. Vincent v. Coll. of the Mainland, 703 F.
App’x 233, 237 (5th Cir. 2017) (quoting Cannon v. Jacobs Field Servs. N. Am., Inc., 813 F.3d
586, 590 (5th Cir. 2016)); see EEOC v. Chevron Phillips Chem. Co., LP, 570 F.3d 606, 615 (5th
Cir. 2009). The defendant’s burden is merely one of production and not of persuasion. Tex.
Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 257-58 (1981); Burton, 798 F.3d at 232 n.10. To
meet this burden, an employer must produce evidence “which, taken as true, would permit the
conclusion that there was a nondiscriminatory reason for the adverse action.” McDaniel v. Nat’l
R.R. Passenger Corp., 705 F. App’x 240, 246 (5th Cir. 2017) (quoting Price v. Fed. Express
Corp., 283 F.3d 715, 720 (5th Cir. 2002)); see St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
507 (1993); Rogers v. Pearland Indep. Sch. Dist., 827 F.3d 403, 408 (5th Cir. 2016), cert.
denied, 580 U.S. 1092 (2017).
73
Here, Defendants present the evidence of Dr. Starkey’s safety warning as their legitimate,
nondiscriminatory reason for revoking Dare’s offer of employment. Specifically, Defendants
assert that they acted based solely on Dr. Starkey’s warning about safety concerns and their
subsequent determination that Dare posed a direct threat to the health and safety of others at
Dragon Rig and could not safely perform the essential functions of a welder. In response, the
EEOC argues that Defendants have failed to articulate a nondiscriminatory reason for rescinding
Dare’s offer because “merely obtaining a medical opinion about an applicant does not
automatically absolve an employer from liability under the ADA” and an employer cannot
“slavishly defer to a physician’s opinion without first pausing to assess the objective
reasonableness of the physician’s conclusion.” The EEOC’s arguments, however, are better
directed to the question of whether Defendants have properly advanced a direct threat defense,
given the previously discussed requirements that a direct threat determination must be based upon
“an individualized assessment” and a “reasonable medical judgment that relies on the most current
medical knowledge and/or on the best available objective evidence.”38 29 C.F.R. § 1630.2(r).
Taking Defendants’ evidence as true, Defendants have met their burden of producing a legitimate,
nondiscriminatory reason—namely, safety concerns—for revoking Dare’s offer.
38
To the extent Defendants intend to rely on their determination that Dare posed a direct threat
as their legitimate, nondiscriminatory reason for revoking Dare’s offer, the court reiterates that genuine
disputes of material fact remain as to whether Defendants complied with the requirements of 29 C.F.R.
§ 1630.2(r). Nevertheless, an employer’s general safety concerns, separate from its determination that
the employee poses a direct threat, can constitute a legitimate, nondiscriminatory reason. See Sutherland,
2020 WL 5436654, at *11 (finding that even if there was “an issue of fact as to the applicability of the
direct threat defense, defendants’ documented concerns over plaintiff’s ability to perform his job safely
are a legitimate, nondiscriminatory reason for the allegedly adverse employment action”).
74
5.
The EEOC’s Argument that Defendants’ Purportedly Nondiscriminatory
Reason is a Pretext for Discrimination
The EEOC argues that Defendants’ explanation is pretextual.39 If the employer meets its
burden of production, the presumption is dissolved, and the burden shifts back to the plaintiff to
demonstrate that the proffered reason is a pretext for discrimination—the defendant’s alleged
nondiscriminatory reason is false and the real reason for the adverse action is disability
discrimination. Rogers, 827 F.3d at 408 (quoting Reeves, 530 U.S. at 143); Squyres v. Heico
Cos., L.L.C., 782 F.3d 224, 231 (5th Cir. 2015) (quoting Hicks, 509 U.S. at 507). As with
discrimination cases generally, the plaintiff at all times bears the ultimate burden of persuading
the trier of fact that he has been the victim of illegal discrimination based on his disability.
Saketkoo v. Adm’rs of Tulane Educ. Fund, 31 F.4th 990, 999 (5th Cir. 2022) (quoting Burdine,
450 U.S. at 253); see Heinsohn v. Carabin & Shaw, P.C., 832 F.3d 224, 235 (5th Cir. 2016).
To prevail on an ADA claim, the plaintiff must prove that an adverse employment decision was
made “because of his disability.” Olivarez v. T-mobile USA, Inc., 997 F.3d 595, 600 (5th Cir.)
(citing Neely, 735 F.3d at 245), cert. denied, 142 S. Ct. 713 (2021).
The EEOC may meet its burden “either through evidence of disparate treatment or by
showing that the employer’s explanation is false or ‘unworthy of credence.’” Delaval, 824 F.3d
at 480 (quoting Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003)); see Mueck, 75 F.4th at
483-84; DeVoss v. Sw. Airlines Co., 903 F.3d 487, 492 (5th Cir. 2018). The evidence must be
of sufficient weight that “a jury could conclude that the employer’s articulated reason is
39
The EEOC also asserts that it need not provide evidence of pretext because it maintains that
Defendants cannot produce evidence of a nondiscriminatory reason for revoking Dare’s offer. As
discussed above, however, the court rejects this argument. The EEOC accordingly must provide evidence
of pretext.
75
pretextual.” Caldwell v. KHOU-TV, 850 F.3d 237, 242 (5th Cir. 2017) (quoting Chevron Phillips
Chem. Co., 570 F.3d at 615); see Kanida v. Gulf Coast Med. Pers. LP, 363 F.3d 568, 575 n.5
(5th Cir. 2004) (“[T]he plaintiff always bears the burden of ‘persuading the trier of fact that the
defendant intentionally discriminated’ against [him].” (quoting Reeves, 530 U.S. at 143)). To
satisfy this burden, the plaintiff must produce “substantial evidence” that the employer’s proffered
reasons for its actions are false or unworthy of credence. Delaval, 824 F.3d at 480 (citing Burton,
798 F.3d at 233); see Gosby, 30 F.4th at 527; Head v. City of Columbus Light & Water Dep’t,
746 F. App’x 389, 392 (5th Cir. 2018). “Evidence is substantial if it is of such quality and weight
that reasonable and fair-minded men [or women] in the exercise of impartial judgment might reach
different conclusions.” Wallace v. Seton Fam. of Hosps., 777 F. App’x 83, 89 (5th Cir. 2019)
(quoting Laxton, 333 F.3d at 579); see January v. City of Huntsville, 74 F.4th 646, 654 (5th Cir.
2023).
While the employer’s proffered nondiscriminatory justification renders the presumption
of discrimination no longer operative, “evidence demonstrating that the employer’s explanation
is false or unworthy of credence, taken together with the plaintiff’s prima facie case, is likely to
support an inference of discrimination even without further evidence of defendant’s true motive.”
Nall, 917 F.3d at 348 (quoting Diggs v. Burlington N. & Santa Fe Ry. Co., 742 F. App’x 1, 4
(5th Cir. 2018)); Haire v. Bd. of Supervisors of La. State Univ. Agric. & Mech. Coll., 719 F.3d
356, 365 n.10 (5th Cir. 2013); see Reeves, 530 U.S. at 147 (“[O]nce the employer’s justification
has been eliminated, discrimination may well be the most likely alternative explanation . . . .”).
Indeed, when “the evidence of pretext is substantial, the plaintiff may create a genuine issue of
material fact without independent evidence that discrimination was the real reason for the adverse
76
employment action.” Crawford v. Formosa Plastics Corp., 234 F.3d 899, 903 (5th Cir. 2000)
(citing Walton v. Bisco Indus., Inc., 119 F.3d 368, 372 (5th Cir. 1997)); see Reeves, 530 U.S.
at 143; Burton, 798 F.3d at 241. Nevertheless, “discrimination suits still require evidence of
discrimination.” Rubinstein v. Adm’rs of the Tulane Educ. Fund, 218 F.3d 392, 400 (5th Cir.
2000), cert. denied, 532 U.S. 937 (2001); accord Kopszywa v. Home Depot USA, Inc., 620 F.
App’x 275, 279 (5th Cir. 2015) (“[E]vidence of pretext will not always be sufficient to survive
summary judgment.”); Churchill v. Tex. Dep’t of Crim. Just., 539 F. App’x 315, 320 (5th Cir.
2013). “[T]he question for summary judgment is whether a rational fact finder could find that the
employer discriminated against the plaintiff[ ] on the basis of [his disability].” Pratt v. City of
Houston, 247 F.3d 601, 606 (5th Cir. 2001) (citing Hicks, 509 U.S. at 511), cert. denied, 540
U.S. 1005 (2003).
Here, the EEOC has presented evidence of pretext that, when considered in conjunction
with the evidence it proffers in support of its prima facie case, is sufficient to create a genuine
dispute of material fact. For example, the EEOC points out that, although Defendants purport to
have revoked Dare’s offer based on safety concerns and their belief that Dare posed a direct threat
to the safety of the workplace, before reaching this conclusion, neither Brown nor Bennett
consulted Blaylock—the sole employee of Defendants who had seen or met with Dare—to ask
about his perception of Dare and his ability to perform as a welder. Brown and Bennett also
admitted that they personally had no knowledge regarding Dare’s work history, his ability to
perform the functions of a welder, or his history of workplace accidents. Moreover, the EEOC
points out that Brown and Bennett conceded that they did not attempt to obtain or learn any of this
information about Dare, and they similarly admitted that they did not communicate with Dr.
77
Starkey to ask any follow-up questions about Dare’s ability to perform the job. Furthermore,
while Dr. Starkey based his safety warning on Dare’s drug screen results, Dare’s prescriptions,
and his knowledge regarding the common effects and interactions of methadone and Xanax, he did
not examine Dare, review his medical records, or otherwise communicate with Dare to determine
whether he could perform as a welder or evaluate the actual effects of Dare’s medications, rather
than their hypothetical effects. The EEOC summarizes the import of this evidence by arguing that
“[t]he fact that no one associated with Defendants actually knew—or can show—whether Dare
could perform the essential functions of the job safely demonstrates a complete lack of good faith,
as well as falsity and pretext.”
To further demonstrate pretext, the EEOC relies on evidence connecting Dare’s
medications to Defendants’ adverse employment action. In particular, the EEOC emphasizes that
Blaylock testified that he was told that Defendants could not hire Dare because “[h]e was on
medication that we couldn’t have in the shop because of the dosage he was taking.” Blaylock then
told Dare that if he could get off those medications, he could take another drug screen and then
be considered for employment with Dragon Rig. In fact, Dare testified in his deposition that
Blaylock specifically referenced Dare’s methadone prescription and told Dare that he would hire
him if he could “get off of that shit.”40
The EEOC likens Blaylock’s statement to the decision-maker’s statements in Steel Painters.
In Steel Painters, the court found that “a jury could reasonably infer from [the decision-maker’s]
40
While Blaylock admits that he told Dare that he could complete another drug screen and be
considered for employment with Dragon Rig if he could get off his medications, Blaylock testified that he
did not know the specific medications that Dare was taking. He also testified that he did not use the word
“shit” to describe Dare’s medications.
78
statement a general discriminatory animus towards recovering drug addicts who are being treated
with methadone” because the decision-maker remarked, “we don’t normally hire people on
methadone,” in addition to stating that while she had “heard that” methadone use was protected
by the ADA, she was “advised that if [the plaintiff] worked in an office setting that would be one
thing but working in a refinery, safety sensitive work, it is a different situation.” 433 F. Supp.
3d at 1004. While the court agrees with Defendants that the present case does not involve such
explicit assertions that Defendants “don’t normally hire people on methadone,” Defendants
nevertheless admit that Blaylock advised Dare that he would need to “get off the medications” in
order to have an opportunity to be hired by Dragon Rig. Indeed, viewing the evidence in the light
most favorable to the EEOC, according to Dare, Blaylock specifically mentioned Dare’s
methadone prescription and referred to it as “shit,” which could lead a reasonable jury to detect
negative perceptions of methadone and discriminatory animus toward persons who are prescribed
methadone. Particularly given the decision-makers’ admissions that they were aware of the
disabilities that Dare’s medications were used to treat, Defendants’ alleged reliance on Dare’s
medications creates a genuine dispute of material fact as to whether their purported conclusion that
Dare posed “safety concerns” was a mere pretext for their underlying discriminatory animus
toward Dare’s alleged disabilities.41
41
The EEOC also argues that Defendants did not follow their own policy to determine whether
Dare could safely perform the duties of the position. Although the EEOC fails to cite this policy, the court
deduces that it is referring to the Disability Accommodation provision in Defendants’ Manual, which states
that Defendants are “committed to . . . ensuring equal opportunity in employment for qualified persons
with disabilities . . . [and] engaging in an interactive dialogue with all qualified individuals with
disabilities, who might require an accommodation.” As best the court can gather, the EEOC faults
Defendants for failing to “engag[e] in an interactive dialogue” with Dare. Without further elaboration,
this argument bears little weight in the court’s analysis of pretext. The court also observes that, in the
context of Title VII claims, courts have held that the failure of the employer to follow its own internal
policies when making employment decisions does not, standing alone, establish discrimination or
79
In this instance, viewing the evidence in the light most favorable to the EEOC, a reasonable
jury could conclude that Defendants’ reliance on Dr. Starkey’s safety warning and subsequent
conclusion that Dare posed safety concerns was a pretext for discrimination based on Dare’s
alleged disabilities. Accordingly, summary judgment is not warranted.
B.
Remaining Issues in Defendants’ Summary Judgment Motion
1.
Defendants’ Argument Regarding a Hypothetical Failure-to-Accommodate
Claim
Defendants also argue that, to the extent the EEOC now attempts to assert a
failure-to-accommodate claim, it is prohibited from doing so because such a claim is neither
alleged in its complaint nor included in Dare’s charge of discrimination.42 The EEOC responds
retaliation. See Sun v. TETRA Techs., Inc., No. 22-20646, 2023 WL 6892227, at *2 (5th Cir. Oct. 19,
2023) (“[O]ur precedent also makes clear that an employer’s ‘failure to follow its own policy is not
probative of discriminatory animus in absence of proof that the plaintiff was treated differently than other
non-minority employees because Title VII does not protect employees from the arbitrary employment
practices of their employer, only their discriminatory impact.’” (quoting Turner v. Baylor Richardson Med.
Ctr., 476 F.3d 337, 345-46 (5th Cir. 2007))).
The EEOC also contends that Defendants “had never hired [or] considered hiring a person using”
methadone or Xanax. The court agrees with Defendants that the EEOC’s assertion is an incorrect
characterization of Brown’s testimony. In actuality, Brown testified that he was not “aware of” any
Dragon Rig employee who has taken or was currently taking Xanax or methadone. It is unclear to the
court how such a statement amounts to evidence of pretext. The EEOC cannot manufacture pretext by
faulting Defendants for never previously hiring someone taking Xanax or methadone if Defendants have
not (prior to Dare’s application) had the opportunity to hire such an applicant. Brown’s testimony sheds
no light on this subject. Accordingly, the court does not consider this argument in assessing the EEOC’s
showing of pretext.
42
Notably, a failure-to-accommodate claim is distinct from a disability discrimination claim. See
Mueck, 75 F.4th at 485 (“To prevail on a failure-to-accommodate claim, a plaintiff ‘must show that
(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.’” (quoting Jennings, 11 F.4th at 343)); see also Clark, 952 F.3d at 587.
80
that it is not asserting a failure-to-accommodate claim.43 Thus, Defendants’ arguments on this
issue are moot, and the court need not address them.
2.
Defendants’ Argument that No Independent Claim Exists for Failure to
Engage in an Interactive Process
Relatedly, Defendants also contend in their summary judgment motion that because “[t]he
ADA does not create a freestanding claim for failure to engage in the interactive process,” the
EEOC’s allegation in its complaint that Defendants withdrew Dare’s offer of employment without
“any further inquiry or engaging in the interactive process” cannot constitute a “separate,
cognizable legal claim.” Defendants argue that employers are not always required to engage in
an interactive process; rather, the interactive process is merely one means an employer may use
to determine whether a reasonable accommodation is available for an employee with a disability.44
Finally, Defendants maintain that because the EEOC concedes that it is not asserting a
failure-to-accommodate claim, the question of whether Defendants engaged in the interactive
process “is immaterial” to the case at bar.
In response, the EEOC alleges that Defendants “misunderstand the issues in this case” and
conflate “individualized assessment” and “interactive process.” The EEOC clarifies that it is not
43
In fact, as Defendants point out and the EEOC acknowledges, the EEOC admitted in its
Objections and Answers to [Defendants’] Third Set of Interrogatories (#63-28) that Dare “was able to
perform all essential functions of the welder position without an accommodation in 2019.”
44
Defendants cite several cases in support of the proposition that an employer’s failure to engage
in an interactive process does not constitute a per se violation of the ADA. See, e.g., Picard v. St.
Tammany Par. Hosp., 423 F. App’x 467, 470 (5th Cir. 2011) (confirming that a failure to engage in the
interactive process is not a per se violation of the ADA because “the ‘interactive process is not an end i[n]
itself—it is a means to the end of forging reasonable accommodations.’” (quoting Loulseged v. Akzo Nobel
Inc., 178 F.3d 731, 736 (5th Cir. 1999))); Eubank v. Lockhart Indep. Sch. Dist., 229 F. Supp. 3d 552,
560 (W.D. Tex. 2017) (“[T]he ADA creates a cause of action for failure to accommodate, not for failure
to engage in an interactive process alone.”), aff’d, 734 F. App’x 295 (5th Cir. 2018) (per curiam).
81
attempting to assert an independent claim for failure to engage in the interactive process. Instead,
the “primary question” at the heart of its disability discrimination claim is “whether Defendants
violated the ADA when they withdrew Dare’s conditional job offer because of his disabilities after
failing to perform the individualized assessment to determine whether Dare could perform the
essential functions of the job with his disabilities, or, if not, whether a reasonable accommodation
by Defendants would have enabled him to perform those functions” (emphasis added). The EEOC
accordingly urges the court to “disregard[ ]” Defendants’ argument on this issue.
For the sake of clarity, the court notes the following distinctions between the terms
“interactive process” and “individualized assessment.” First, the EEOC’s regulations explain that
an employer and an individual might engage in an “interactive process” in order to identify an
appropriate reasonable accommodation that will enable that individual to perform the essential
functions of his job. See 29 C.F.R. § 1630.2(o)(3) (“To determine the appropriate reasonable
accommodation it may be necessary for the covered entity to initiate an informal, interactive
process with the individual with a disability in need of the accommodation. This process should
identify the precise limitations resulting from the disability and potential reasonable
accommodations that could overcome those limitations.” (emphasis added)).
Notably, an
employer’s “duty to engage in the interactive process is only triggered after the employee has
requested an accommodation.” Mueck, 75 F.4th at 487 (citing Chevron Phillips Chem. Co., 570
F.3d at 621; EEOC v. Agro. Distrib., LLC, 555 F.3d 462, 471 (5th Cir. 2009)). In contrast, an
“individualized assessment” is required in order to evaluate whether an individual poses a “direct
threat” to the workplace. See 29 C.F.R. § 1630.2(r) (“The determination that an individual poses
82
a ‘direct threat’ shall be based on an individualized assessment of the individual’s present ability
to safely perform the essential functions of the job.” (emphasis added)).
As discussed above, the EEOC is not asserting a failure-to-accommodate claim in this case.
It likewise does not aver that Dare requested (or required) a reasonable accommodation from
Defendants. Thus, the EEOC appears to agree with Defendants that the so-called “interactive
process” is not germane to the present case.
Defendants assert, however, that Dare was not qualified for the welding position at Dragon
Rig because he posed a “direct threat.” In other words, Defendants essentially concede that
although the “interactive process” is inapplicable to the case at bar, the separate issue of
“individualized assessment” is integral to it. Thus, because the EEOC agrees that it is not
attempting to assert a nonexistent claim for failure to engage in an interactive process and
Defendants, by raising the issue of the direct threat analysis, concede that the question of whether
Dare was subject to an “individualized assessment” is central to this case, the court concludes that
the parties’ briefing on this issue presents no outstanding matter for the court’s determination.
3.
Defendants’ Argument that the EEOC Cannot Demonstrate that It Is
Entitled to Punitive Damages
Finally, Defendants contend that the EEOC cannot produce any evidence to support its
disability discrimination claim, and, thus, there is no discriminatory act upon which the EEOC can
base its request for punitive damages. Defendants also allege that they are entitled to summary
judgment on the punitive damages issue because the record is devoid of any evidence that Brown
or Bennett acted maliciously or with reckless indifference to Dare’s rights under the ADA.
A complaining party may recover punitive damages if it demonstrates that the defendant
engaged in “a discriminatory practice or discriminatory practices with malice or with reckless
83
indifference to the federally protected rights of an aggrieved individual.”
42 U.S.C.
§ 1981a(b)(1); see id. § 1981a(a)(2) (explaining that in actions brought under the ADA, “the
complaining party may recover compensatory and punitive damages as allowed in subsection
(b).”). “This is a higher standard than the showing necessary for compensatory damages.”
Wantou v. Wal-Mart Stores Tex., L.L.C., 23 F.4th 422, 439 (5th Cir. 2022) (citing Kolstad v. Am.
Dental Ass’n, 527 U.S. 526, 534 (1999)), cert. denied, 143 S. Ct. 745 (2023). As the Fifth
Circuit recently explained when upholding a punitive damages award in a Title VII case:
Ultimately, the terms “malice” and “reckless indifference” “focus on the actor’s
state of mind.” Both “pertain to the employer’s knowledge that it may be acting
in violation of federal law, not its awareness that it is engaging in discrimination
[or retaliatory conduct].” Thus, the defendant employer “must at least discriminate
in the face of a perceived risk that its actions will violate federal law to be liable
for punitive damages.” “Moreover, even if particular agents acted with malice or
reckless indifference, an employer may avoid vicarious punitive damages liability
if it can show” that the agents’ actions were contrary to the employer’s good-faith
efforts to comply with [federal antidiscrimination statutes].
Id. (quoting Kolstad, 527 U.S. at 535-36; EEOC v. Boh Bros. Constr. Co., L.L.C., 732 F.3d 444,
467 (5th Cir. 2013)); see E.I. Du Pont de Nemours & Co., 480 F.3d at 732 (applying an identical
standard for an award of punitive damages arising from the plaintiff’s ADA claim).
Here, the EEOC argues that it has produced evidence sufficient to allow a reasonable jury
to conclude that Bennett and Brown did not make a good-faith effort to comply with the ADA “in
the face of a perceived risk that their conduct could violate federal law.” The EEOC first cites
Defendants’ Equal Employment Opportunity (“EEO”) policy (#63-5), which provides that
Defendants are “committed to providing equal employment opportunity to all applicants and
employees in all its employment practices and to provide a work environment free of
discrimination and/or harassment on the basis of . . . disability . . . or any other category
84
protected by law.” The EEOC further notes that the Manual’s Disability Accommodation
provision states that Defendants are “committed to . . . ensuring equal opportunity in employment
for qualified persons with disabilities . . . [and] engaging in an interactive dialogue with all
qualified individuals with disabilities, who might require an accommodation.” In addition, the
EEOC emphasizes that both Bennett and Brown acknowledged during their depositions that their
respective jobs entail handling internal allegations of employment discrimination.45 Taking all of
this evidence together, the EEOC claims that “[a] jury could conclude that because Defendants had
a policy which prohibits disability discrimination and because Bennett and Brown were responsible
for fielding discrimination complaints under Defendants’ antidiscrimination policy, they knew or
should have known” that their conduct “violated the ADA and the companies’ internal policies.”
Defendants do not controvert the EEOC’s assertions about their policies or Bennett’s and
Brown’s responsibilities for handling internal employment discrimination complaints. Instead,
they claim that the EEOC has failed to raise a genuine issue of material fact as to punitive damages
because it relies solely on “the unsupported argument that ‘Bennett and Brown made no effort, let
alone good faith effort, to comply with the ADA.’” The court concludes, however, that the EEOC
has proffered sufficient evidence to create a genuine dispute of material fact as to
whether—assuming that the EEOC can establish that Defendants revoked Dare’s job offer because
of his disabilities—Bennett and Brown acted on behalf of Defendants with “reckless indifference”
to the risk that their actions could violate federal law. In other words, the court is of the opinion
45
Specifically, Bennett confirmed that he investigates internal complaints of alleged employment
discrimination to determine whether the complaints are “accurate” and to identify “what
remediations . . . [or] corrective actions need to happen.” Brown similarly testified that after employment
discrimination complaints are made to an immediate supervisor, the supervisor passes that information
along to him, and he and Bennett then handle the complaint.
85
that the EEOC’s evidence could lead a reasonable jury to conclude that Bennett and Brown were
recklessly indifferent to federal law of which they should have been cognizant, not only because
the policy Manual specifically included a Disability Accommodation section and a reference to
avoiding discrimination as to “categor[ies] protected by law,” but also because their jobs required
them to handle internal discrimination complaints on Defendants’ behalf. The EEOC has thus
adduced sufficient evidence to create a genuine dispute of material fact as to whether, in the event
that the EEOC proves its disability discrimination claim, it may recover punitive damages from
Defendants.46 Accordingly, Defendants are not entitled to summary judgment on the issue of
punitive damages.
C.
Remaining Issues in the EEOC’s Summary Judgment Motion
1.
The EEOC’s Arguments Regarding Defendants’ Affirmative Defense of
Failure to Mitigate Damages
The EEOC also seeks summary judgment on Defendants’ affirmative defense that Dare
failed to mitigate his damages. Specifically, the EEOC argues that this defense should be struck
as improperly pleaded because it is a “boilerplate assertion devoid of factual support” that does
46
The EEOC’s response brief also preemptively addresses Defendants’ ability to assert the
good-faith exception to punitive damages liability. Specifically, the EEOC cites Deffenbaugh-Williams v.
Wal-Mart Stores, Inc., to argue that the mere fact that Defendants had an antidiscrimination policy is
insufficient to satisfy the standard for making a “good-faith effort” to comply with federal
antidiscrimination law. 188 F.3d 278, 286 (5th Cir. 1999). The EEOC further relies upon EEOC v. SDI
of Mineola, L.L.C., to contend that Defendants cannot establish the good-faith defense because they “have
never trained Bennett, Brown, or any other manager or supervisor on the ADA or more generally on
workplace discrimination, including disability discrimination.” No. 6:21-cv-0026-JCB-KNM, 2022 WL
4127167, at *13-14 (E.D. Tex. Aug. 17, 2022), adopted by No. 6:21-cv-00226, 2022 WL 4125079 (E.D.
Tex. Sept. 9, 2022). Notably, however, Defendants’ motion and reply brief do not reference their
antidiscrimination policies in an attempt to raise the good-faith exclusion. Therefore, because neither the
EEOC nor Defendants seek summary judgment on the good-faith exception, the court need not address
its applicability at this juncture.
86
not comply with pleading requirements.47 The EEOC further contends that Defendants have failed
to produce evidence to support the defense. In response, Defendants first assert that a challenge
to the sufficiency of the pleading of an affirmative defense is more appropriately raised in a motion
to strike under Federal Rule of Civil Procedure 12(f). Defendants also contend that Dare’s own
deposition testimony provides evidence that Dare failed to mitigate his damages.
a.
The EEOC’s Request to Strike Defendants’ Failure to Mitigate
Defense
As an initial matter, the EEOC correctly states that the pleading standards for affirmative
defenses mirror those for complaints, and Defendants thus must “plead an affirmative defense with
enough specificity or factual particularity to give the plaintiff ‘fair notice’ of the defense that is
being advanced.” Blount v. Johnson Controls, Inc., 328 F.R.D. 146, 149 (S.D. Miss. 2018)
(quoting Woodfield v. Bowman, 193 F.3d 354, 362 (5th Cir. 1999)). Nevertheless, the Fifth
Circuit has recognized that “in some cases, merely pleading the name of the affirmative
defense . . . may be sufficient.” Woodfield, 193 F.3d at 362; see Sunoco Partners Mktg. &
Terminals L.P. v. U.S. Venture, Inc., 598 F. Supp. 3d 520, 531 (S.D. Tex. 2022). Courts have
applied this lenient standard to the affirmative defense of failure to mitigate damages, recognizing
that “[i]nformation necessary to plead more specifically is in the possession of the plaintiffs and
others” and “the defendants can only obtain that information through discovery.” Tran v. Thai,
No. H-08-3650, 2010 WL 723633, at *2 (S.D. Tex. Mar. 1, 2010) (determining that the defense
was adequately pleaded where defendants’ answer alleged that “[t]he plaintiff has failed to mitigate
damages, if any, as required by law”); see Njoku v. Harris Cnty. Hosp. Dist., No. 3:22-cv-00406,
47
Defendants’ Original Answer to Plaintiff’s Original Complaint (#4) alleges: “Defendants would
show that Dare has failed to mitigate his damages, if any.”
87
2024 WL 23175, at *3 (S.D. Tex. Jan. 2, 2024) (concluding that a “relatively spartan” statement
of the failure-to-mitigate defense was sufficiently pleaded); Morgan v. Goodman Mfg. Co., L.P.,
No. 4:19-CV-00850, 2021 WL 1169390, at *10 (S.D. Tex. Mar. 10, 2021) (holding that
defendant’s defense that the plaintiff “failed to mitigate his alleged damages” met the “lenient
standard” of providing “fair notice”), adopted by No. 4:19-CV-00850, 2021 WL 1166756 (S.D.
Tex. Mar. 26, 2021).48 As a result, the court denies the EEOC’s request to strike Defendants’
failure to mitigate defense as insufficiently pleaded.
b.
Defendants’ Evidence that Dare Failed to Mitigate His Damages
The EEOC also asserts that it is entitled to summary judgment on Defendants’ failure to
mitigate defense because it has shown that Dare “took reasonable steps under the circumstances
to mitigate his backpay damages.” It alleges that Defendants, on the other hand, have failed to
provide evidence of Dare’s purported failure to mitigate his damages. The EEOC notes that
during discovery, in response to the EEOC’s request that Defendants produce all documents
related to their failure-to-mitigate argument, Defendants asserted that they were relying on the
EEOC’s complaint and “documents produced by [the EEOC].”
Thus, the EEOC avers,
Defendants cannot produce any evidence in support of this affirmative defense, and the EEOC is
entitled to summary judgment as a result.
In an employment discrimination case, the employer bears the burden of proving the
plaintiff’s failure to mitigate his damages. Miniex v. Hous. Hous. Auth., 400 F. Supp. 3d 620,
48
Notably, the case that the EEOC cites to argue that an affirmative defense must be pleaded with
“more than a boilerplate assertion devoid of factual support” did not involve a failure to mitigate defense.
See Willins v. Credit Sols. of Am., Inc., No. 3:09-cv-1025-M, 2010 WL 624899, at *1 (N.D. Tex. Feb.
23, 2010).
88
654 (S.D. Tex. 2019); EEOC v. IESI La. Corp., 720 F. Supp. 2d 750, 754 (W.D. La. 2010)
(quoting Palasota v. Haggar Clothing Co., 499 F.3d 474, 486 (5th Cir. 2007)). “A plaintiff suing
for back pay under the ADA has a duty to mitigate [his] damages by using reasonable diligence
to obtain substantially equivalent employment.” Zavala v. Tex. Lehigh Cement Co., LP, 635 F.
Supp. 3d 524, 533 (W.D. Tex. 2022) (quoting Miles-Hickman v. David Powers Homes, Inc., 613
F. Supp. 2d 872, 887 (S.D. Tex. 2009)). “Whether an injured person has mitigated his damages
requires a factual assessment of the reasonableness of his conduct.” Id. (quoting Hill v. City of
Pontotoc, 993 F.2d 422, 427 (5th Cir. 1993)). “But an employer must show ‘not only that the
plaintiff failed to exercise reasonable diligence, but that there were jobs available which plaintiff
could have discovered and for which [he] was qualified.’” Id. (quoting Miles-Hickman, 613 F.
Supp. 2d at 887).49 “Substantially equal employment is employment that affords virtually identical
promotional opportunities, compensation, job responsibilities, working conditions, and status [as
the original position].” Id. at 534 (quoting Floca v. Homcare Health Servs., Inc., 845 F.2d 108,
49
In Zavala, the United States District Court for the Western District of Texas noted that although
the Fifth Circuit held in Sparks v. Griffin, 460 F.2d 433, 443 (5th Cir. 1972), that a defendant must prove
both elements of the failure-to-mitigate defense, several Fifth Circuit cases decided after Sparks “state that
if an employer proves the employee has not exercised reasonable diligence in seeking out new employment,
it need not show the availability of substantially equivalent employment.” Id. at 534 n.6 (citing Jackson
v. Host Int’l, 426 F. App’x 215, 222 (5th Cir. 2011); West v. Nabors Drilling USA, 330 F.3d 379, 393
(5th Cir. 2003); Sellers v. Delgado Coll., 902 F.2d 1189, 1193 (5th Cir.), cert. denied, 498 U.S. 987
(1990)). “Most” district courts, however, have held that Sparks continues to control in light of “the Fifth
Circuit’s principle that one panel cannot overrule the decision of another panel absent an en banc
decision.” Id. (citing Miniex, 400 F. Supp. 3d at 620; Garcia v. Harris County, No. H-16-2134, 2019
WL 132382, at *2 (S.D. Tex. Jan. 8, 2019); Buckingham v. Booz Allen Hamilton, Inc., 64 F. Supp. 3d
981, 986 (S.D. Tex. 2014)). The Zavala court accordingly applied the Sparks rule and required the
defendant to provide evidence that supported a genuine dispute of material fact as to both elements of the
failure-to-mitigate defense. Id. Notably, neither the EEOC nor Defendants address this issue in their
briefing. In any event, the court need not decide this issue in the present case because Defendants have
identified sufficient evidence to create a genuine dispute of material fact as to both whether Dare failed to
exercise reasonable diligence and whether substantially equal employment was available to him.
89
111 (5th Cir. 1988)). “[E]mployment must have been available in the employee’s specific line of
work in the same type of role.” Id. (quoting Floca, 845 F.2d at 111).
In response to the EEOC’s motion, Defendants rely on Dare’s own deposition testimony
as evidence that Dare failed to mitigate his damages after his conditional offer of employment was
withdrawn in February 2019. Defendants contend that Dare’s testimony demonstrated that he
“either worked irregularly for short periods of time after applying at Dragon [Rig] or voluntarily
chose to be unemployed despite being able to work and the availability of welder positions.”
Specifically, as support for the element that Dare did not exercise “reasonable diligence in seeking
out new employment,” Defendants rely on Dare’s testimony that he had not worked for any
company as a “W-2 employee”during the ten years prior to his deposition in July 2022 and that
he had not filed a tax return since 2012. Defendants also provide evidence of an Itemized
Statement of Earnings from the Social Security Administration, which reflects that the
administration has “no record of earnings” for Dare from the years 2017-2021. Additionally, as
evidence that “substantially equivalent employment” as a welder was “available” to Dare,
Defendants rely on Dare’s agreement during his deposition to the following facts: welders were
in high demand, he could find a job as a welder “any time,” he could earn as much as $55.00 per
hour working as a welder, and he was voluntarily unemployed at the time of his deposition.
Defendants have thus produced evidence sufficient to create a genuine dispute of material
fact as to both whether Dare failed to exercise reasonable diligence in seeking out other
employment and whether substantially equivalent employment was available to him. Accordingly,
the EEOC is not entitled to summary judgment on Defendants’ affirmative defense of failure to
mitigate damages.
90
2.
The EEOC’s Arguments Regarding Defendants’ Failure to State a Claim
Defense
The EEOC also seeks summary judgment on Defendants’ affirmative defense of failure to
state a claim, contending that the defense is insufficiently pleaded and that Defendants have failed
to produce any competent evidence to support it.50 The EEOC relies on EEOC v. Courtesy
Building Services, Inc., as an example where a court rejected a defense of “failure to state a
claim” as “so broad that it is unclear merely from an assertion of the name of the defense what
the nature of the defense may be.” No. 3:10-CV-1911-D, 2011 WL 208408, at *3 (N.D. Tex.
Jan. 21, 2011) (citing Lebouef v. Island Operating Co., Inc., 342 F. App’x 983, 985 (5th Cir.
2009)).
Notably, however, as Defendants point out, Courtesy Building Services, Inc., was decided
in the context of a motion to strike under Rule 12(f), rather than on summary judgment. Id. at *1.
Defendants also argue that, although they did not file a motion to dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(6), Defendants have instead “moved to dismiss the EEOC’s case in its
entirety pursuant to Federal Rule of Civil Procedure 56.” As a result, Defendants maintain, there
is no basis to grant the EEOC’s motion on this ground.
Nevertheless, courts have determined that because “failure to state a claim is not an
affirmative defense, but rather raises a defect in a plaintiff’s complaint,” it is appropriate to grant
summary judgment to the plaintiff on such a defense. Herrera v. JK & HE Bus., LLC, No.
H-14-2986, 2016 WL 8193294, at *9 (S.D. Tex. Oct. 14, 2016) (citing PNC Bank, Nat’l Ass’n
v. SM & JH, LLC, No. 4:12-CV-597-JCH, 2012 WL 2905047, at *2 (E.D. Mo. July 16, 2012);
50
Specifically, Defendants’ answer alleges: “Defendants deny that Plaintiff has adequately pled
the claims in its Complaint or has stated a claim for which relief may be granted.”
91
Boldstar Tech., LLC v. Home Depot, Inc., 517 F. Supp. 2d 1283, 1292 (S.D. Fla. 2007)); see
EEOC v. Geoscience Eng’g & Testing, Inc., No. H-05-3365, 2007 WL 951632, at *2 (S.D. Tex.
Mar. 28, 2007) (granting plaintiff’s motion for summary judgment on the defense of failure to
state a claim because the defendant had failed to assert that, “accepting as true all well-pleaded
facts in Plaintiff’s complaint, Plaintiff has failed to allege sufficient facts to state in its Complaint
an actionable sexual harassment claim”).
While Defendants seek to dismiss this case, they do not argue that dismissal is warranted
based on deficiencies in the EEOC’s complaint. Indeed, the motions deadline in this case lapsed
several months ago, and Defendants’ opportunity to challenge the sufficiency of the EEOC’s
complaint on Rule 12(b)(6) grounds has thus expired. As a result, the court concludes that the
EEOC is entitled to summary judgment on Defendants’ defense of failure to state a claim.
3.
The EEOC’s Arguments Regarding Defendants’ Abandoned Defenses
The EEOC also seeks summary judgment on Defendants’ affirmative defenses of
laches/statute of limitations and failure to exhaust administrative remedies. Defendants abandoned
these defenses in their response brief. Thus, the EEOC is entitled to summary judgment on the
aforementioned defenses.
III.
Conclusion
Accordingly, Defendants’ Motion for Summary Judgment (#63) is DENIED. There exist
genuine disputes of material fact with respect to the EEOC’s claim of disability discrimination.
The EEOC, therefore, may proceed to trial on its claim of disability discrimination against
Defendants. Defendants’ motion is likewise denied as to punitive damages, as the EEOC has
raised sufficient evidence to create a genuine dispute of material fact on this ground. Furthermore,
92
Defendants’ request that the court determine that Defendants did not operate as an integrated
enterprise is denied for the reasons set forth below.51
The EEOC’s Motion for Partial Summary Judgment (#69) is GRANTED in part and
DENIED in part. As noted above, genuine disputes of material fact remain with respect to the
EEOC’s disability discrimination claim.
The EEOC’s motion for summary judgment is
accordingly denied on this ground. The EEOC’s motion is likewise denied as to Defendants’
affirmative defense of failure to mitigate damages, as Defendants have demonstrated that genuine
disputes of material fact remain regarding this issue.
The EEOC’s motion is, however, granted with respect to the issue of whether Defendants
operated as an integrated enterprise. There remain no material facts in dispute, and the EEOC is
entitled to judgment as a matter of law that Defendants operated as an integrated enterprise.
Finally, the EEOC’s motion is granted as to Defendants’ defenses of failure to state claim, failure
to exhaust administrative remedies, and statute of limitations/laches.
SIGNED at Beaumont, Texas, this 25th day of March, 2024.
________________________________________
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE
51
As noted above, Defendants’ other requests for summary judgment are moot because the EEOC
is not asserting causes of action for failure to accommodate or failure to engage in an interactive process.
93
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