Jackson v. City of Sherman, Texas

Filing 81

MEMORANDUM OPINION AND ORDER. For the foregoing reasons, Defendant's motion for summary judgment (Dkt. 59) is DENIED as to Plaintiff's ADA claim and DENIED as moot as to Plaintiff's workers' compensation claim. Defendant' ;s motion to dismiss (Dkt. 60) is GRANTED. Plaintiff's ADA claim shall proceed to trial, and Plaintiff's workers' compensation claim is dismissed for lack of subject matter jurisdiction. Signed by Magistrate Judge Kimberly C Priest Johnson on 10/23/2017. (kls, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
RONNIE G. JACKSON,

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Plaintiff,
v.
CITY OF SHERMAN, TEXAS,
Defendant.

CASE NO. 4:16-CV-774-KPJ

MEMORANDUM OPINION AND ORDER
Now before the Court is Defendant City of Sherman, Texas’s (“Defendant” or the “City”)
Amended Motion for Summary Judgment (Dkt. 59). Plaintiff Ronnie G. Jackson (“Plaintiff”) filed
a response in opposition (Dkt. 67), and Defendant filed a reply ((Dkt. 69). Also before the Court
is Defendant’s Motion to Dismiss Plaintiff’s Workers’ Compensation Claim Under 12(b)(1) (Dkt.
60),1 to which Plaintiff filed a response in opposition (Dkt. 70), and Defendant filed a reply (Dkt.
79). As set forth below, the motion for summary judgment (Dkt. 59) is DENIED, and the motion
to dismiss (Dkt. 60) is GRANTED.
I.

BACKGROUND

This lawsuit arises from Plaintiff’s federal law claim that his employment with the City of
Sherman was terminated in violation of 42 U.S.C. § 12101, et seq, the Americans with Disabilities
Act of 1990, as amended (the “ADA”). Plaintiff also asserts a claim for violation of Texas Labor
Code § 451.000, et. seq., and “vicarious liability.” See Dkt. 24. Plaintiff’s vicarious liability claim
is predicated on his assertion that Defendant was liable for the wrongful acts of its agents,
employees, and/or representatives. Plaintiff alleges he was demoted and denied reasonable

The Court notes that Defendant’s challenge to the Court’s subject matter jurisdiction over Plaintiff’s workers
compensation claim is also asserted in its summary judgement motion. See Dkt. 59 at 20-21.
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accommodation in violation of the ADA. See Dkt. 24. The ADA prohibits workplace
discrimination on the basis of a disability. Plaintiff also alleges Defendant violated Section 451.001
of the Texas Labor Code, which prohibits retaliation for filing a workers’ compensation claim.
Plaintiff was employed by the City for over nine (9) years. Plaintiff injured his right knee
on or about July 11, 2014, while performing his duties as a Lead Mechanic. Dkt. 24 at ¶ 6-7.
Plaintiff reported his injury and filed a workers’ compensation claim with the Division of Workers’
Compensation of the Texas Department of Insurance. Id. at ¶ 6-7. He alleges that on or about
September 2, 2015, he was discharged effective September 30, 2015, and at the time of his
discharge, he was employed in “Data Entry in the RTA system.” Id. at ¶ 5. Plaintiff alleges that a
Texas Workers’ Compensation Work Status Report describing Plaintiff’s physician-prescribed
physical restrictions played a role in his termination. Id. at 3.
II.

LEGAL STANDARD

A. RULE 12(B)(1) MOTION TO DISMISS
A party may seek dismissal in a pretrial motion based on any of the defenses set out in Rule
12(b) of the Federal Rules of Civil Procedure. FED. R. CIV. P. 12(b); see also Albany Ins. Co. v.
Almacenadora Somex, 5 F.3d 907, 909 (5th Cir. 1993).
Rule 12(b)(1) governs challenges to a court’s subject matter jurisdiction. Federal courts
have limited jurisdiction; without jurisdiction conferred by statute, they lack the power to
adjudicate claims. In re FEMA Trailer Formaldehyde Products Liab. Litig. (Mississippi Plaintiffs),
668 F.3d 281, 286 (5th Cir. 2012). Under Rule 12(b)(1), a claim is properly dismissed for lack of
subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate
the claim. Id. To determine whether a federal question is involved requires the court to consider
whether the complaint states a claim “arising under” federal law. Rodriguez v. Texas Comm'n of

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Arts, 992 F. Supp. 876, 879 (N.D. Tex. 1998), aff'd sub nom. Rodriguez v. Texas Comm'n on the
Arts, 199 F.3d 279 (5th Cir. 2000).
A motion to dismiss based on the complaint alone presents a “facial attack” that requires
the court to merely decide whether the allegations in the complaint, if presumed to be true,
sufficiently state a basis for subject matter jurisdiction. If a governmental entity is immune, the
court lacks subject matter jurisdiction. See Capozzoli v. Tracey, 663 F.2d 654, 657 n. 2 (5th Cir.
1981). As the party asserting jurisdiction, the plaintiff bears the burden of proving by a
preponderance of the evidence that all jurisdictional requirements have been met. Ramming v.
United States, 281 F.3d 158, 161 (5th Cir. 2001). The court should dismiss a suit for lack of subject
matter jurisdiction if it appears certain that the plaintiff cannot prove any set of facts in support of
his claim that would entitle plaintiff to relief.
B. MOTION FOR SUMMARY JUDGMENT
Summary judgment is appropriate when, viewing the evidence and all justifiable inferences
in the light most favorable to the non-moving party, there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Hunt v.
Cromartie, 526 U.S. 541, 549 (1999). The appropriate inquiry is “whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is so one-sided that one party
must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
The party moving for summary judgment has the initial burden to prove there are no
genuine issues of material fact for trial. Provident Life & Accident Ins. Co. v. Goel, 274 F.3d 984,
991 (5th Cir. 2001). In sustaining this burden, the movant must identify those portions of pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v.

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Catrett, 477 U.S. 317, 325 (1986). The moving party, however, “need not negate the elements of
the nonmovant’s case.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).
The movant’s burden is only to point out the absence of evidence supporting the nonmoving
party’s case. Stults v. Conoco, Inc., 76 F.3d 651, 655 (5th Cir. 1996).
In response, the non-movant “may not rest upon mere allegations contained in the
pleadings, but must set forth and support by summary judgment evidence specific facts showing
the existence of a genuine issue for trial.” Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458
(5th Cir. 1998) (citing Anderson, 477 U.S. at 255-57). Once the moving party makes a properly
supported motion for summary judgment, the nonmoving party must look beyond the pleadings
and designate specific facts in the record to show there is a genuine issue for trial. Stults, 76 F.3d
at 655. The citations to evidence must be specific, as the district court is not required to “scour
the record” to determine whether the evidence raises a genuine issue of material fact. E.D. Tex.
LOCAL R. CV-56(d). Neither “conclusory allegations” nor “unsubstantiated assertions” will satisfy
the nonmovant’s burden. Stults, 76 F.3d at 655.
III.

ANALYSIS

As explained above Plaintiff brings a federal claim under the ADA, as well as a workers’
compensation claim under Texas Labor Code §451.001, et seq. Defendant seeks dismissal of
Plaintiff’s workers’ compensation claim on the basis that the Court lacks subject matter
jurisdiction. See Dkt. 59.
A. PLAINTIFF’S WORKERS’ COMPENSATION CLAIM
1. The Court’s Previous Denial on the Basis of Supplemental Jurisdiction
The Court previously denied Defendant’s request for dismissal of Plaintiff’s workers’
compensation claim. See Dkt. 32. However, the asserted basis for dismissal at that time was the

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Court’s exercise of supplemental jurisdiction over Plaintiff’s state law claim. See id. Defendant
then argued the Court should not exercise supplemental jurisdiction because Plaintiff’s state law
claim did not “derive from a common nucleus of operative fact.” See Dkt. 27 at. at 5-6; see also
United Mine Workers of America v. Gibbs, 383 U.S. 715, 725 (1966), However, the Court found
that Plaintiff’s state law claim did arise from the same nucleus of operative fact, namely Plaintiff’s
termination and his alleged claims associated with said termination. See Dkt. 32 at 3.
2. Timeliness of Defendant’s Jurisdictional Challenge
Defendant now argues that Plaintiff’s workers’ compensation claim should be dismissed
because the City’s governmental immunity bars Plaintiff’s workers’ compensation claim. See Dkt.
60. Plaintiff argues that Defendant’s motion to dismiss Plaintiff’s workers’ compensation claim is
untimely because it was filed after the dispositive motion deadline in this case. See Dkt. 70.
However, as noted above, Defendant first raised the issue of the Court’s lack of subject matter
jurisdiction in its motion for summary judgment, which was timely filed. See Dkt. 59 at 20-21.
Even were that not the case, Plaintiff’s argument must fail.
A party may raise objections to subject matter jurisdiction at any time. Henderson ex rel.
Henderson v. Shinseki, 562 U.S. 428, 434 (2011), see also FED. R. CIV. P. 12(h)(3). Accordingly,
a party may move to dismiss a case because the trial court lacked subject matter jurisdiction even
after trial. Id. at 435. In the Fifth Circuit, “a factual attack under Rule 12(b)(1) may occur at any
stage of the proceedings, and plaintiff bears the burden of proof that jurisdiction does in fact exist.”
Arena v. Graybar Elec. Co., 669 F.3d 214, 223 (5th Cir. 2012) (quoting Menchaca v. Chrysler
Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980) (citations omitted)). A motion to dismiss based
on governmental immunity challenges a court’s subject-matter jurisdiction. See Capozzoli v.
Tracey, 663 F.2d 654, 657 n. 2 (5th Cir. 1981); Stanley v. Centr. Intelligence Agency, 639 F.2d

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1146, 1157 (5th Cir. 1981). As such, Defendant may bring its jurisdictional motion even though
the deadline for motions to dismiss has passed. Moreover, “[i]f the court determines at any time
that it lacks subject-matter jurisdiction, the court must dismiss the action.” FED. R. CIV. P. 12(h)(3);
see also Henderson, 562 U.S. at 434. Accordingly, Defendant’s jurisdictional challenge is not time
barred.
3. The Merits of Defendant’s Jurisdictional Challenge
Having addressed Plaintiff’s challenges to Defendant’s motion on the basis that the Court
previously denied the motion and the timeliness of the jurisdictional challenge, the Court turns to
the substantive issue of whether the City is entitled to governmental immunity. Upon review of
the case law cited by Defendant, the Court agrees with Defendant’s argument that both federal
courts and the Texas Supreme Court recognize governmental immunity from suit when a plaintiff
brings a claim for discrimination under the Texas Anti-Retaliation Law. See TEX. LAB. CODE
§ 451.001(1). In Travis Cent. Appraisal Dist. v. Norman, 342 S.W.3d 54, 57-59 (Tex. 2011)
(concluding that in light of the 2005 legislative amendment to Chapter 504, “a retaliatory discharge
claim may not be brought against the government without its consent and the Political Subdivisions
Law no longer provides such consent by waiving the government’s immunity”); see also Manbeck
v. Austin Indep. Sch. Dist., 381 S.W.3d 528 (Tex. 2012) (reexamining and upholding the decision
in Travis); Elmore v. Collin County, Texas, 2012 WL 1554883 (E.D. Tex. 2012) (citing Travis,
342 S.W.3d at 56 (finding that “sovereign or governmental immunity generally protects the
government from liability for the performance of governmental functions, such as the hiring and
firing of employees”); Gore v. Cedar Hill Indep. Sch. Dist., 2016 WL 4597513, at *1 (N.D. Tex.
2016), report and recommendation adopted, 2016 WL 4593515 (N.D. Tex. 2016) (finding that as
a “political subdivision” of Texas, Cedar Hill ISD is “protected by governmental immunity”).

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Based on the foregoing, the Court finds the City is entitled to governmental immunity, and
Plaintiff’s claim pursuant to Chapter 451 of the Texas Labor Code should be dismissed for lack of
subject matter jurisdiction. Accordingly, Defendant’s motion to dismiss (Dkt. 60) is GRANTED.
B. PLAINTIFF’S ADA CLAIM
Defendant alleges that Plaintiff cannot satisfy the necessary elements to bring a claim under
the ADA because: (1) he could not perform the essential functions of his job, and therefore, is not
a qualified individual; and (2) the City had a non-discriminatory reason for his discharge, and
therefore, Plaintiff was not subject to an adverse employment action because of his disability. See
Dkt. 59.
Plaintiff counters that the because the essential functions of the position he held at the time
of his discharge did not require any of the physical restrictions placed on him, Defendant’s stated
reason for his discharge (being unable to perform essential functions of his job) is false. See Dkt.
67; see also Dkt. 24 ¶ 17-18. Plaintiff also argues that Defendant failed to engage in an interactive
process to work with Plaintiff in good faith as required by the ADA. See Dkt. 67 at 1, 9-10.
According to Plaintiff, he could have performed the duties of Lead Mechanic with minimal
restrictions. See Dkt. 67 at 10.
Plaintiff contends he was a “qualified individual” at the time of his discharge. See Dkt. 67.
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). Defendant argues that the summary judgment
evidence Plaintiff offers in support of his claim fails to show that Plaintiff could have performed
the essential functions of a Lead Mechanic with reasonable accommodation. See Dkt. 68.
However, Plaintiff avers that the “modified duty position specifically tailored to [him]” constituted

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a reasonable accommodation and a “bona fide offer of employment.” See Dkt. 67 at 7-8. According
to Plaintiff, Defendant revoked its reasonable accommodation when it learned that Plaintiff’s
physical restrictions would be permanent. See Dkt. 67 at 8.
Plaintiff points to a letter from the City dated April 6, 2017 (the “Modified Duty Letter”),
wherein the City assigned Plaintiff to perform the duties of “Data Entry in the RTA system.” See
Dkt. 67-8. The Modified Duty Letter specifically states that it is a “bona fide offer of employment
pursuant to TWCC Rule 129.6,” and that the Data Entry position was designed using guidelines
from Plaintiff’s treating physician “relating to [his] current medical condition and [ ] ability to
work.” See id. Plaintiff was required to—and did—sign the Modified Duty Letter accepting the
offer. Id. Defendant argues that the Modified Duty Letter was not intended to create a new position
separate from Plaintiff’s position as Lead Mechanic. See Dkt. 69 at 5. Defendant argues that
although Plaintiff was assigned to perform the duties of “Data Entry in the RTA System,” his
position remained Lead Mechanic. See Dkt. 69 at 5. According to Defendant, the Data Entry
position was intended to be temporary, and “it was not required to create a new permanent position
or wait indefinitely for Plaintiff’s health to improve.” See Dkt. 59 at 14 (citing Turco v. Hoechst
Celanese Corp., 101 F.3d 1090, 1094 (5th Cir. 1996)). Defendant also avers that “the position was
always understood to be temporary because the data-input function [ ] was [in the process] of being
outsourced.” Id. at 16.
Defendant further argues the language “pursuant to TWCC Rule 129.6” is critical in that
reading the term “modified duty position” in the context of TWCC Rule 129.6 can “only properly
be read as offering a temporary modified duty position.” Dkt. 59 at 16 (emphasis in original).
Plaintiff counters that Defendant misrepresents TWCC Rule 129.6. See Dkt. 67 at 12. Directing
the Court to the testimony of Wayne Blackwell (“Blackwell”), the City’s former Director of

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Human Resources, Plaintiff argues that TWCC Rule 129.6 relates only to the payment of
temporary benefits and does not mandate that all modified job offers are only temporary. Id.; Dkt
67-5 at 5, 16: 1,4-18. Defendant also argues that Blackwell lacked authority to create a new
position. See Dkt. 59 at 17. Although Defendant makes conclusions about what these facts must
mean, based on the record before it, the Court cannot conclude there is no genuine issue of material
fact as to the meaning and effect of the Modified Duty Letter. Accordingly, summary judgment is
not proper on this ground.
Plaintiff also argues that Defendant violated the ADA by terminating Plaintiff without
engaging in an “interactive process.” See Dkt. 67 at 10; see also Liner v. Hosp. Serv. Dist. No. 1
of Jefferson Parish, 230 Fed. Appx. 361, 364 (5th Cir. 2007) (quoting 29 C.F.R. § 1630.2(o)(3))
(unpublished); Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 735 (5th Cir. 1999). Plaintiff argues
that Defendant made the decision to terminate Plaintiff once it learned Plaintiff’s restrictions would
be permanent. See Dkts. 67 and 67-2 at 22. Plaintiff avers he could have performed the essential
functions of the Lead Mechanic position with minimal reasonable accommodation. See Dkt. 67 at
10. Defendant counters that it engaged in the interactive process even before Plaintiff returned to
work and argues that Plaintiff did not suggest or seek any further accommodation after the City
determined Plaintiff’s modified duty position would be eliminated. See Dkt. 69 at 9.
Based on the record, it is unclear whether, or to what extent, Defendant engaged in an
interactive process once it learned of Plaintiff’s permanent restrictions. The record is also unclear
regarding what happened from the time Defendant was notified of Plaintiff’s permanent restriction
(May 7, 2015) to the time Defendant informed Plaintiff he would be terminated (September 2,
2015). See Dkts. 59 at 8-9 and 59-1 at 7, 41. In light of Defendant’s position that the modified duty
position was intended to be temporary (see Dkt. 59 at 15-16), the record evidence indicating that

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Defendant was awaiting the final outcome of Plaintiff’s medical restrictions to determine the
length of the temporary position (see Dkt. 67-2 at 22), and the lack of any record evidence that
Plaintiff and Defendant engaged in an interactive process between May 2015, and September 2015,
the Court concludes that this is a fact issue that should be presented to a jury.
IV.

CONCLUSION

For the foregoing reasons, Defendant’s motion for summary judgment (Dkt. 59) is
DENIED as to Plaintiff’s ADA claim and DENIED as moot as to Plaintiff’s workers’
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compensation claim. Defendant’s motion to dismiss (Dkt. 60) is GRANTED. Plaintiff’s ADA
claim shall proceed to trial, and Plaintiff’s workers’ compensation claim is dismissed for lack of
subject matter jurisdiction.
It is SO ORDERED.
SIGNED this 23rd day of October, 2017.
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KIMBERLY C. PRIEST JOHNSON
UNITED STATES MAGISTRATE JUDGE

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