Cohen v. University of Texas Health et al
Filing
64
MEMORANDUM AND OPINION and ORDER GRANTING 37 MOTION for Summary Judgment filed by University of Texas Health Science Center at Tyler. ORDERED that the lawsuit is DISMISSED with prejudice, the Final Pretrial Conference scheduled for April 1, 2013, and the Jury Selection and Trial scheduled for April 2, 2013 are CANCELED, and that any motion not previously ruled on is DENIED. Signed by Magistrate Judge Judith K. Guthrie on 3/25/2013. (gsg)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
DEBRA ELLEN COHEN
§
v.
§
UNIVERSITY OF TEXAS HEALTH
SCIENCE CENTER AT TYLER
§
CIVIL ACTION NO. 6:11cv650
MEMORANDUM OPINION AND ORDER
ON MOTION FOR SUMMARY JUDGMENT
The above-styled lawsuit was filed on December 5, 2011. The case was transferred to the
undersigned on May 24, 2012 with the consent of the parties in accordance with 28 U.S.C. § 636.
Defendant filed a Motion for Summary Judgment (document #37), which is the subject of this
Memorandum Opinion and Order.
Background
Plaintiff filed an Amended Complaint on January 11, 2012, asserting a claim pursuant to the
Americans With Disabilities Act of 1990, 42 U.S.C. §§ 12101, et seq., including as amended by the
ADA Amendments Act of 2008, and a claim pursuant to § 504 of the Rehabilitation Act of 1973.
Defendant filed a motion seeking dismissal of Plaintiff’s ADA claim for want of subject matter
jurisdiction. The motion was granted on October 31, 2012.
In this case, Plaintiff alleges that her former employer, University of Texas Health Science
Center, Tyler (“UTHSC-T”), failed to accommodate her actual disability of rheumatoid arthritis,
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discriminated against her by demoting her and discharging her and retaliated against her for seeking
accommodation. Plaintiff states in the Amended Complaint that she was employed by UTHSC-T
in 2010, and that she suffered from rheumatoid arthritis. Plaintiff submits that she requested
accommodation in May 2010, in the form of voice recognition software to alleviate the need for her
to type as much. According to Plaintiff, her accommodation was denied and she was demoted in
June 2010. Her employment was terminated in August 2010.
UTHSC-T filed a Motion for Summary Judgment (document #37). UTHSC-T asserts that
Plaintiff’s employment was terminated as a result of a reduction in force and that, even if her job had
not been eliminated, Plaintiff could not perform the essential functions of her job. UTHSC-T denies
that any reasonable accommodation was denied for Plaintiff’s rheumatoid arthritis. On the contrary,
UTHSC-T argues that it initiated attempts to assist Plaintiff and accommodate her injuries when she
returned to work following a car accident, but Plaintiff refused assistance and stated that she did not
want to be considered disabled.
The summary judgment evidence submitted by UTHSC-T shows that Plaintiff was hired in
August 2009 as a Clinical Data Specialist in the Center for Clinical Research (“CCR”). Her direct
supervisor was Laurie Macleod. Plaintiff’s duties included learning and using a clinical trial
management program called StudyManager. StudyManager was a program that was intended to
allow existing systems to communicate with each other, which would alleviate the need to extract
data from one system and manually enter it into another. Plaintiff identified problems with the
StudyManager program that made it unsuitable for its intended purpose. A similar program referred
to as Velos was also considered. Ultimately, Ms. Macleod made a decision to not pursue use of
StudyManager or Velos as a result of problems with utilizing the programs and budgetary
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constraints. The contract with StudyManager was not renewed and the CCR chose not to proceed
with Velos. This occurred approximately six months into Plaintiff’s employment. Working on a
clinical trial management system was the primary focus of Plaintiff’s duties and provided the bulk
of her work. Once the decision was made not to use StudyManager or Velos, Ms. Macleod did not
have enough work for Plaintiff. Plaintiff’s remaining duties included data entry, technical support
and website building.
Ms. Macleod took FMLA leave in late February 2010. When she returned in March 2010,
other staff members complained to her about Plaintiff’s attitude and behavior. Ms. Macleod
counseled Plaintiff concerning her behavior. Plaintiff told Macleod that she had been in a car
accident, that she could no longer drive and that she would need surgery on both of her hands.
Plaintiff explained to Macleod that she was in a great deal of pain and had limited use of her hands.
Her recovery from surgery was expected to be at least 4 months. Plaintiff was not eligible for FMLA
leave, however, because she had not been employed for 12 months yet, and she had not accrued very
much sick leave as a result of the short tenure of her employment. When the issue of disability
benefits were discussed, Plaintiff stated that she did not intend to seek disability and that she could
perform her job. An adaptive keyboard was purchased for Plaintiff and the Director of Rehab
evaluated Plaintiff’s workstation and offered suggestions to Plaintiff.
Plaintiff had surgery on her right hand on March 31, 2010 and returned to work on April 5,
2010. Plaintiff did not have a note from her doctor releasing her to work. Plaintiff acknowledged
being in pain and taking pain medication. She worked a half-day and was told by Ms. Macleod to
bring a work release from her doctor when she returned. On April 6, 2010, Plaintiff returned to work
for another half-day and exhibited indications that she was still in pain. She did not bring a work
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release from her doctor. Ms. Macleod determined that Plaintiff was not ready to return to work, as
she could not accomplish normal tasks such as opening doors, opening drinks or typing. Plaintiff
was told not to return until she had a work release from her doctor. That same day, Ms. Macleod
reviewed Plaintiff’s 6-month evaluation with her. The evaluation commends Plaintiff’s work on the
clinical trial management system, but also notes Ms. Macleod’s concerns relating to Plaintiff’s
interpersonal skills. Plaintiff again appeared for work on April 7, 2010, and was told to stay home
until she obtained a work release from her doctor.
Plaintiff obtained a note from her doctor stating that she could return to work for 4-hour days
beginning on April 14, 2010, and that she could return to 8-hour days on April 19, 2010. Plaintiff’s
restrictions imposed until May 10, 2010 included restrictions on physical activities, lifting, computer
use and typing. On April 23, 2010, Plaintiff requested voice recognition software. Ms. Macleod
sent the request to Georgia Melton, Director of Human Resources and the ADA coordinator, for
review. During this same time period, Ms. Macleod became concerned about Plaintiff’s lack of
productivity, performance on assigned tasks and lack of attention to security issues. Plaintiff was
instructed, for example, that her husband could not be in secure office areas with her after hours.
Ms. Macleod and Ms. Melton met with Plaintiff on May 4, 2010 and gave Plaintiff a form for
permanent ADA accommodations to be completed by her doctor. According to Ms. Macleod,
Plaintiff insisted that her limitations were only temporary and that she did not want to be labeled
“disabled.” On May 11, 2010, Ms. Macleod and Ms. Melton met with Plaintiff again to discuss
Plaintiff’s failure to turn in the ADA accommodation form or a release to work full duty. Plaintiff
was told that she either needed to turn in the completed form or she would be expected to perform
all duties without accommodation.
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On May 19, 2010, Plaintiff provided a note from her doctor requesting accommodations
and/or restrictions until August 10, 2010. At that same time, Ms. Macleod informed Plaintiff that
the IT department concluded that voice recognition software could not be ordered for her because
of cost and because it would not interface with all of the required programs. According to Ms.
Macleod, Plaintiff stated that she no longer required it. Ms. Macleod identifies multiple occurrences
after that when Plaintiff did not carry out assigned tasks and/or could not complete tasks for which
she had been trained. At a meeting on June 1, 2010, Ms. Macleod told Ms. Melton that there was
not enough work to keep Plaintiff busy since the clinical trial management programs had been
abandoned. Plaintiff was notified about a potential part-time position in the IT department set to
be available later that month. On June 23, 2010, Plaintiff began her new position. The position was
only temporary and was deleted effective August 3, 2010. Plaintiff was told that her position was
being eliminated by Kimberly Griffin in Human Resources.
Summary Judgment Standard
Rule 56(a) of the FED . R. CIV . P. provides that the Court may only grant a motion for
summary judgment when there is no genuine issue of material fact and the moving party is entitled
to summary judgment as a matter of law. The party seeking summary judgment always bears the
initial responsibility of informing the district court of the basis for its motion and identifying 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. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553 (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
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evidence supporting the nonmoving party’s case. Stults v. Conoco, Inc., 76 F.3d 651, 655 (5th Cir.
1996). 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 showing
that there is a genuine issue for trial. Id. Neither “conclusory allegations” nor “unsubstantiated
assertions” will satisfy the nonmovant’s burden. Id.
Summary judgment is inappropriate if the evidence before the court, viewed as a whole,
could lead to different factual findings and conclusions. Honore v. Douglas, 833 F.2d 565 (5th Cir.
1987). The district court must look to the full record, including the pleadings, affidavits, and
depositions. Williams v. Adams, 836 F.2d 958, 961 (5th Cir. 1988). Under this standard, fact
questions are considered with deference to the nonmovant. Reid v. State Farm Mutual Automobile
Insurance Co., 784 F.2d 577, 578 (5th Cir.1986). The evidence of the nonmovant is to be believed
and all inferences are to be drawn in his favor. Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106
S.Ct. 2505, 2513 (1986). The Court resolves factual controversies for purposes of summary
judgment in favor of the nonmoving party, but only when there is an actual controversy, that is, when
both parties have submitted evidence of contradictory facts. Little v. Liquid Air Corp., 37 F.3d at
1075. The Court does not, however, in the absence of any proof, assume that the nonmoving party
could or would prove the necessary facts. Wallace v. Texas Tech University, 80 F.3d 1042, 1048 (5th
Cir. 1996) (citing Little v. Liquid Air Corp, 37 F.3d at 1075).
An issue is "genuine" if the evidence supporting its resolution in favor of the party opposing
summary judgment, together with any inference in such party's favor that the evidence allows, would
be sufficient to support a verdict in favor of the party. St. Amant v. Benoit, 806 F.2d 1294, 1297 (5th
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Cir. 1987). A "material fact" is one that might affect the outcome of the suit under governing law.
Anderson v. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510.
Discussion and Analysis
Plaintiff’s claims brought pursuant to the ADA were previously dismissed on October 31,
2012, leaving her claims seeking relief pursuant to § 504 of the Rehabilitation Act, 29 U.S.C. § 794.
Section 504 of the Rehabilitation Act prohibits disability discrimination by recipients of federal
funding. Similar to the ADA, § 504 provides that no qualified individual with a disability, “shall
solely by reason of her or his disability, be excluded from participation in, be denied the benefits of,
or be subjected to discrimination under any program or activity receiving Federal financial
assistance.” 29 U.S.C. § 794(a). Section 504 and the ADA are generally interpreted in pari materia,
meaning they are construed together. Frame v. City of Arlington, 657 F.3d 215, 223 (5th Cir.2011).
The analysis applicable to an ADA claim is used when considering a claim brought pursuant to §
504. Pinkerton v. Spellings, 529 F.3d 513, 516-17 (5th Cir.2008). Section 504(d) expressly states
that “[t]he standards used to determine whether this section has been violated in a complaint alleging
employment discrimination under this section shall be the standards applied under title I of the
[ADA].”
One significant distinguishing factor, however, is that § 504 requires a plaintiff to show that
she was discriminated against solely because of her disability. 29 U.S.C. § 794(a). Unlike the ADA,
liability under § 504 cannot be established by showing that disability was a motivating factor;
disability must be shown to be the sole cause for the adverse employment decision at issue. Soledad
v. U.S. Dep’t of Treasury, 304 F.3d 500, 505 (5th Cir.2002). A plaintiff must show that she has a
disability, that she is qualified for the job, that she was employed in a program or activity that
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receives federal funding and that she suffered an adverse employment decision solely because of her
disability. Hileman v. City of Dallas, 115 F.3d 352, 353 (5th Cir.1997); see also, Handy v. Brownlee,
118 Fed.Appx. 850, 854 (5th Cir.2004); Pinkerton v. Spellings, 529 F.3d at 517-19.
Discrimination claims may be shown by direct evidence or circumstantial evidence. In this
case, Plaintiff does not present any direct evidence of discrimination. Instead, Plaintiff relies upon
circumstantial evidence to support her assertion that she was discriminated against because of a
disability. Courts look to the well known McDonnell Douglas1 framework when considering
discrimination cases founded upon circumstantial evidence. Atkinson v. Denton Publishing
Company, 84 F.3d 144, 148 (5th Cir.1996). Under the McDonnell Douglas framework, the plaintiff
initially bears the burden of establishing a prima facie case by a preponderance of the evidence.
Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 992 (5th Cir.1996)(en banc).
Defendant contends that Plaintiff cannot establish a prima facie case of discrimination
because she cannot show that she was disabled or that she could perform the essential functions of
her job with or without a reasonable accommodation. Defendant points to Plaintiff’s assertions
during her employment that she was not disabled and did not want to be perceived as disabled, as
well as her alleged performance problems. In response, Plaintiff argues that the ADA Amendments
Act of 2008 broadened the definition of “disability” and that Plaintiff’s rheumatoid arthritis meets
the definition of an ADA disability.
Because it does not change the outcome in this case, for purposes of this summary judgment
analysis, the Court assumes, arguendo, that Plaintiff can establish a prima facie case of
discrimination or point to genuine issues of material fact on the issues of her disability and her status
1
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973).
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as a qualified individual. Once a plaintiff establishes a prima facie case of discrimination, the burden
shifts to the employer to “articulate a legitimate, non-discriminatory reason for firing” the employee.
Vaughn v. Woodforest Bank, 665 F.3d 632, 636 (5th Cir.2011). If the employer articulates a
legitimate, non-discriminatory reason for the challenged employment decision, the plaintiff must be
given an opportunity to rebut the employer’s purported explanation and show that the reason given
is merely pretextual. Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 378-79 (5th Cir.2010).
The issue on summary judgment is whether the plaintiff “has shown that there is a genuine issue of
material fact as to whether this reason was pretextual.” Id. Pretext may be shown either through
evidence of disparate treatment or that the employer’s proffered explanation is false or unworthy of
credence. Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir.2010).
In this case, UTHSC-T asserts that there are legitimate, non-discriminatory reasons for the
termination of Plaintiff’s employment. UTHSC-T submits that Plaintiff’s position was eliminated
due to a reduction in force and that Plaintiff then accepted a part-time, temporary position that later
expired. A reduction in force “is itself a legitimate, nondiscriminatory reason for discharge.” EEOC
v. Tex. Instruments, Inc., 100 F.3d 1173, 1181 (5th Cir.1996). The defendant having articulated a
legitimate, non-discriminatory reason for Plaintiff’s discharge, the burden then shifts to Plaintiff to
show that UTHSC-T’s proffered reason is pretext for discrimination. Pinkerton, 529 F.3d at 519.
In an attempt to show pretext, Plaintiff argues that there is no evidence that her position was
eliminated. Plaintiff disputes the use of the term “reduction in force” because when asked whether
the position held by Plaintiff “remained empty,” Ms. Macleod, during her deposition, responded
“yes.” Plaintiff also submits that the HR director knew about her rheumatoid arthritis and had a
hostile attitude towards her, and that she was a good employee with a great evaluation. Plaintiff has
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not disputed that the clinical trial management software was a significant portion of her job duties,
that her employer stopped using the clinical trial management software, or that she was not replaced.
The ultimate burden of persuading the court that she was a victim of intentional
discrimination always remains on the plaintiff. Armstrong v. City of Dallas, 997 F.2d 62, 65 (5th
Cir.1993). “On summary judgment, in this third step, the plaintiff must substantiate [her] claim of
pretext through evidence demonstrating that discrimination lay at the heart of the employer’s
decision.” Price v. Federal Express Corp., 283 F.3d 715, 720 (5th Cir.2002). For summary
judgment purposes, the core issue is whether a genuine issue of material fact exists as to whether
the defendant intentionally discriminated against the plaintiff. LaPierre v. Benson Nissan, Inc., 86
F.3d 444 (5th Cir.1996); Armstrong, 997 F.2d at 65.
Here, Plaintiff has not met her burden of producing sufficient evidence from which a
reasonable trier of fact could conclude that the proffered reason is unworthy of credence. Plaintiff
has not shown a genuine issue of material fact concerning whether the proffered non-discriminatory
reason for the adverse employment action was a pretext for disability discrimination.
Plaintiff additionally alleges that she was retaliated against after requesting voice recognition
software. To establish a prima facie case of retaliation under the Rehabilitation Act, a plaintiff must
show that: (1) she engaged in a protected activity, such as the filing of an EEO complaint; (2) her
employer took an adverse employment action against her; and (3) a causal connection existed
between the adverse employment action and the protected activity. Calderon v. Potter, 113
Fed.Appx. 586, 592 (5th Cir.2004). The same burden-shifting analysis applies, such that once a
plaintiff establishes a prima facie case of retaliation, the burden shifts to the defendant to show that
it had a legitimate, non-discriminatory reason for taking the adverse employment action. Id. (citing
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Gee v. Principi, 289 F.3d 342, 345 (5th Cir.2002)). If the defendant successfully articulates a
legitimate, non-discriminatory reason for the adverse employment action, the plaintiff then must
show that the adverse employment action would not have occurred “but for” the protected activity.
Id. (citing Long v. Eastfield Coll., 88 F.3d 300, 308 (5th Cir.1996)).
Plaintiff has not shown that her request for voice recognition software is a protected activity.
Moreover, as set forth above, the summary judgment evidence does not show that the termination
of Plaintiff’s employment would not have occurred but for her request for voice recognition
software. She does not contradict Defendant’s evidence that the clinical trial management software
was a significant portion of her job duties, that her employer stopped using the clinical trial
management software, or that she was not replaced. Plaintiff additionally does not contradict
UTHSC-T’s summary judgment evidence that the IT department concluded that the requested voice
recognition software would not be compatible with all of the software programs used in Plaintiff’s
job. Plaintiff has not presented evidence sufficient to create a question of material fact as to whether
a causal connection existed between a protected activity and an adverse employment action or that
the decision to deny her request was the result of intentional discrimination.
Based upon the foregoing discussion and analysis, the undersigned finds that there are no
genuine issues of material fact precluding summary judgment. Defendant is entitled to judgment as
a matter of law and the motion for summary judgment should be granted dismissing the complaint.
It is accordingly
ORDERED that Defendant’s Motion for Summary Judgment (document #37) is
GRANTED. It is further
ORDERED that the above-styled lawsuit is DISMISSED with prejudice. It is further
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ORDERED that the Final Pretrial Conference scheduled for April 1, 2013, and the Jury
Selection and Trial scheduled for April 2, 2013 are CANCELED. It is finally
ORDERED that any motion not previously ruled on is DENIED.
So ORDERED and SIGNED this 25 day of March, 2013.
____________________________
JUDITH K. GUTHRIE
UNITED STATES MAGISTRATE JUDGE
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