Mir v. L-3 Communications Integrated Systems LP

Filing 56

MEMORANDUM OPINION AND ORDER grants in part and denies in part 40 Motion for Summary Judgment filed by L-3 Communications Integrated Systems LP. Specifically, Defendant's Motion for Summary Judgment is granted with regard to Plaintiff's discrimination claim under the Americans with Disabilities Act (ADA) and denied with regard to Plaintiff's prohibited inquiries claim under the ADA. (Ordered by Judge Sam A Lindsay on 11/8/2017) (epm)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
PETER MIR,
Plaintiff,
v.
L-3 COMMUNICATIONS
INTEGRATED SYSTEMS, L.P.,
Defendant.

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Civil Action No. 3:15-CV-2766-L

MEMORANDUM OPINION AND ORDER
Before the court is Defendant’s Motion for Summary Judgment (Doc. 40), filed January 9,
2017. After careful consideration of the motion, briefs, appendix, record, and applicable law, the
court grants in part and denies in part Defendant’s Motion for Summary Judgment. Specifically,
Defendant’s Motion for Summary Judgment is granted with regard to Plaintiff’s discrimination
claim under the Americans with Disabilities Act (“ADA”) and denied with regard to Plaintiff’s
prohibited inquiries claim under the ADA.
I.

Procedural and Factual Background
Plaintiff Peter Mir (“Plaintiff” or “Mir”) filed this action against Defendant L-3

Communications Integrated Systems, L.P. (“Defendant” or “L-3 Communications”) on August 24,
2015. Mir contends that L-3 Communications discriminated against him in violation of the ADA
when it did not hire him for one of two open positions. He also contends that L-3 Communications
made inquiries about the nature and severity of his visible physical limitations in violation of the
ADA.
On January 9, 2017, L-3 Communications moved for summary judgment on Mir’s claims
of ADA discrimination and prohibited inquiries. The court now sets forth the facts in accordance
Memorandum Opinion and Order - Page 1

with the standard in Section II of this opinion. Mir has suffered from hip problems throughout his
life and has had a number of surgeries on his right hip, including multiple hip replacement
operations or revisions. In 2005, during his last hip replacement, the sciatic nerve on one side of
his hip was crushed, which caused permanent nerve damage. As a result, Mir walks with a
pronounced limp and uses a cane to assist him while walking. In 2005, the injury ultimately
required Mir to go on long-term disability. In 2006, Mir’s long-term disability benefits provider
required him to apply for social security benefits to offset the long-term disability benefits. On his
April 12, 2006 application, Mir indicated that he was unable to work because of a damaged nerve
in his right leg and a condition known as “foot drop.” Additionally, an Adult Disability & Work
Report, prepared by Pamela Ramert, a representative of Allsup, Inc., a company the insurer used
to assist people with their social security applications, completed a detailed analysis on Mir’s
injuries. The Social Security Administration (“SSA”) approved Mir’s application, and he was
awarded SSA benefits.
In 2007, Mir underwent another surgery to correct his hip, and he was physically able to
return to work in 2008. In 2011, Mir applied to work for L-3 Communications in its Greenville,
Texas facility. He applied to a post on L-3 Communications’s website for a Mechanical Design
Engineer position (the “Position”). On October 11, 2011, Bill Buckley, a recruiter in L-3
Communications’s Human Resources Department, contacted Mir and scheduled his interview for
October 17, 2011. The Mechanical Design Engineer job posting listed qualifications for the
position as follows:
Bachelors Degree in Mechanical or Civil Engineering with a minimum of 8 years
of experience or Bachelor’s Degree with related experience. The candidate must
have a knowledge of manufacturing processes, which include machining, NC
programming, sheet metal and assembly. Additional knowledge of HDL Aircraft
installation procedures is a plus. He/She should have experience with what
constitutes a good engineering design with respect to producibility issues. In
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additional to these skills, the ability to work simultaneous projects and operate in a
dynamic, fast-paced cross-functional environments is required. Strong written and
oral communication skills are essential.
Pl.’s App. 143. On October 17, 2011, L-3 Communications interviewed Mir for the position. Chad
Grant (“Grant”), a department head at L-3 Communications, met Mir at a recruiter’s office and led
him to his office, which was located in a separate building to conduct the interview. During the
walk to his office, approximately 100 yards away, Grant asked Mir questions regarding his ability
to walk. Mir advised Grant that he had a hip replacement surgery, a mistake was made, and his
sciatic nerve was crushed.
The interview commenced once Mir and Grant reached his office. Grant advised Mir on
responsibilities associated with the Position and asked Mir various questions regarding his
background and experience. Grant also asked questions regarding the nature and extent of Mir’s
physical limitations. Specifically, Grant made inquiries as to Mir’s short and long-term prognoses
and a timeline of when the injuries occurred. Mir testified that the discussion concerning his
injuries lasted approximately fifteen minutes. Approximately three weeks after the interview, Bill
Buckley, L-3 Communications’s human resources representative, called Mir to inform him that L3 Communications declined to offer him the Position.
On August 11, 2012, Mir filed a complaint with the Office of Federal Contract Compliance
Programs (“OFCCP”) because of Grant’s inquiries about his injuries during his interview with L3 Communications. On March 25, 2013, the OFCCP sent Mir a Notification of Results of
Investigation, which concluded that L-3 had discriminated against him because of his disability.
In May 2015, however, the OFCCP issued a Revised Notification of Results of Investigation,
declared that there was insufficient evidence to conclude that L-3 Communications had

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discriminated against Mir because of his disability, and issued him a notice of right to sue. Mir
initiated this action following the OFCCP’s notice of right to sue.
L-3 Communications moves for summary judgment on Mir’s claims of ADA
discrimination and prohibited inquiries. L-3 communications contends that Mir is unable to
establish a prima facie case under the ADA because he is not a qualified individual and that it did
not discriminate against him because of his disability. Moreover, L-3 Communications contends
that even assuming Mir can establish a prima facie case, L-3 Communications has set forth a
legitimate nondiscriminatory reason for rejecting him for the position, and Mir fails to demonstrate
evidence of pretext for discrimination. L-3 Communications further argues that Mir’s claim for
improper inquiries under the ADA fails because of a lack of evidence of damages proximately
caused by the alleged inquiries. Accordingly, L-3 Communications contends that it is entitled to
a summary judgment on all of Mir’s claims. Plaintiff counters that the summary judgment record,
when viewed in the light most favorable to Mir, demonstrates that he has made a prima facie case
of discrimination, and that L-3 Communications’s reason for rejecting him for the position is
pretextual. Accordingly, Mir contends that the court should deny L-3 Communications’s Motion
for Summary Judgment.
II.

Motion for Summary Judgment Standard
Summary judgment shall be granted when the record shows that there is no genuine dispute

as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas
Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is “genuine”
if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary

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judgment, the court is required to view all facts and inferences in the light most favorable to the
nonmoving party and resolve all disputed facts in favor of the nonmoving party. Boudreaux v.
Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005). Further, a court “may not make
credibility determinations or weigh the evidence” in ruling on a motion for summary judgment.
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 25455.
Once the moving party has made an initial showing that there is no evidence to support the
nonmoving party’s case, the party opposing the motion must come forward with competent
summary judgment evidence of the existence of a genuine dispute of material fact. Matsushita
Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). On the other hand, “if the movant
bears the burden of proof on an issue, either because he is the plaintiff or as a defendant he is
asserting an affirmative defense, he must establish beyond peradventure all of the essential
elements of the claim or defense to warrant judgment in his favor.” Fontenot v. Upjohn Co., 780
F.2d 1190, 1194 (5th Cir. 1986) (emphasis in original). “[When] the record taken as a whole could
not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine [dispute] for
trial.’” Matsushita, 475 U.S. at 587. (citation omitted). Mere conclusory allegations are not
competent summary judgment evidence, and thus are insufficient to defeat a motion for summary
judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions,
improbable inferences, and unsupported speculation are not competent summary judgment
evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994).
The party opposing summary judgment is required to identify specific evidence in the
record and to articulate the precise manner in which that evidence supports his or her claim. Ragas,
136 F.3d at 458. Rule 56 does not impose a duty on the court to “sift through the record in search

Memorandum Opinion and Order - Page 5

of evidence” to support the nonmovant’s opposition to the motion for summary judgment. Id.; see
also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n.7 (5th Cir. 1992). “Only disputes
over facts that might affect the outcome of the suit under the governing laws will properly preclude
the entry of summary judgment.” Anderson, 477 U.S. at 248. Disputed fact issues that are
“irrelevant and unnecessary” will not be considered by a court in ruling on a summary judgment
motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence
of an element essential to its case and on which it will bear the burden of proof at trial, summary
judgment must be granted. Celotex, 477 U.S. at 322-23.
III.

Analysis
A.

Disability Discrimination
1. Contentions of the Parties

L-3 Communications argues that Mir’s claim for discrimination under the ADA fails as a
matter of law. Specifically, L-3 Communications contends that: (1) Mir cannot establish that he
was qualified for the Mechanical Design Engineer position because he is judicially estopped from
being a “qualified individual” by his representation to the SSA; (2) because Mir did not meet the
minimum qualifications for the Position, he was not “otherwise qualified”; (3) Mir was not subject
to an adverse employment decision on account of his disability; (4) Mir was rejected for the
position for a legitimate, nondiscriminatory reason; and (5) Mir cannot establish pretext.
Mir contends that he is disabled, as his foot injury qualifies as a disability. Further, Mir
argues that he has established a prima facie case of discrimination. Specifically, Mir contends
that: (1) he was qualified and “otherwise qualified” for the Position; (2) he is not judicially
estopped from being a “qualified individual”; (3) fact issues preclude summary judgment

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regarding whether L-3 rejected him because of his disabilities; and (4) L-3’s reason for rejecting
him for the Position is pretextual.
2. Legal Standard for an ADA Claim
The ADA is an anti-discrimination statute designed to remove barriers that prevent
qualified individuals with disabilities from enjoying employment opportunities available to
persons without disabilities. Taylor v. Principal Fin. Grp., Inc., 93 F.3d 155, 161 (5th Cir. 1996).
The ADA prohibits discrimination against a qualified individual because of a 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).
A person is disabled under the ADA if he: (1) has a physical or mental impairment that
substantially limits one or more of the major life activities, (2) has a record of such impairment, or
(3) is regarded as having such an impairment. 42 U.S.C. § 12102(2). The ADA Amendments Act
of 2008 made it “easier for people with disabilities to obtain protection under the ADA.” Cannon
v. Jacobs Field Servs. N. Am., Inc., 813 F.3d 586, 590 (5th Cir. 2016) (citing 29 C.F.R. §
1630.1(c)(4)). The amendments broadened the definition of “disability” by “construing the
substantially limits standard in favor of broad coverage.” Id (internal quotation omitted). The
bottom line in a “post-amendment case is thus whether [plaintiff’s] impairment substantially limits
his ability ‘to perform a major life activity as compared to most people in the general population.”
Id. (citing 29 C.F.R. § 1630.2(j)(1)(ii)). Neither parties dispute whether Mir is disabled.
A person “may establish a claim of discrimination under the ADA either by presenting
direct evidence or by using the indirect method of proof set forth in McDonnell Douglas . . . .”
Seaman v. CSPH, Inc., 179 F.3d 297, 300 (5th Cir. 1999). There is no direct evidence that Mir

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was discriminated against because of his foot injury. Mir testified that Grant asked him, “What is
wrong with your leg?” Pl.’s App. 51. Mir responded, “I had a hip replacement and the sciatic
nerve was crushed during the hip replacement.” Id. Mir, however, conceded in his deposition that
the question was likely out of curiosity. Pl.’s App. 59:2-59:8. The court agrees that Grant’s inquiry
about Mir’s leg asked under these circumstances is not direct evidence of discrimination under the
ADA. Mir, therefore, must “show a violation of the ADA using circumstantial evidence [and]
must satisfy the McDonnell Douglas burden-shifting framework.” Cannon, 813 F.3d at 590.
3. Prima Facie Case
To establish a prima facie case of intentional discrimination under McDonnell Douglas,
Mir must show that: “(1) [he] has a disability, or was regarded as disabled; (2) he was qualified
for the job; and (3) he was subject to an adverse employment decision on account of his disability.”
Id. Once a plaintiff makes this showing, “a presumption of discrimination arises, and the employer
must ‘articulate a legitimate nondiscriminatory reason for the adverse employment action.” Id.
(citation omitted). “The burden then shifts to the plaintiff to produce evidence from which a jury
could conclude that the employer’s articulated reason is pretextual.” Id. (citation omitted)
a. Judicial Estoppel
L-3 Communications argues that Plaintiff is judicially estopped from being a “qualified
individual” by his representation to the SSA in 2006. L-3 Communications contends that Mir
cannot prevail on his claim because his statements to the SSA bind him until at least 2013, when
Mir updated his SSA application. When a party assumes a position, and succeeds in maintaining
that position, such party may be judicially estopped from assuming a conflicting position solely
because his interests are no longer the same. Microsoft Corp. v. Baker, 137 S. Ct. 1702, 1713
(2017). Under the Social Security Act (the “Act”), “disability” means the “ inability to engage in

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any substantial gainful activity by reason of any . . . physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous period
of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). Although the ADA’s definition of
“disability” and the SSA’s definitions are similar, “when the [Act] determines whether an
individual is disabled for [disability benefits] purposes, it does not take the possibility of
‘reasonable accommodation’ into account.” Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795,
803 (1999). Therefore, an application for disability benefits under the Act does not necessarily
preclude a plaintiff from establishing a claim under the ADA; however, to defeat summary
judgment a plaintiff must offer a sufficient explanation to reconcile his sworn assertions to the
SSA regarding his inability to work and his claim that he was qualified for the position under the
ADA. Id. at 806-07. A failure to explain the inconsistency will result in judicial estoppel of his
ADA claim by the earlier statements regarding disability.

McClaren v. Morrison Mgmt.

Specialists, Inc., 420 F.3d 457, 463 (5th Cir. 2005) (citing Cleveland, 526 U.S. at 807); Equal
Employment Opportunity Comm’n v. Vicksburg Healthcare, L.L.C., 663 F. App’x 331, 334 (5th
Cir. 2016).
In his 2006 application to the SSA, Mir stated “that he was unable to work because of a
damaged nerve in his right leg and a condition known as ‘foot’ drop.” Def.’s App. 19:10-19:25.
Mir testified in his deposition, however, that in 2007 he underwent another surgery to resolve a
problem that transpired as a result of his 2005 hip replacement. Def.’s App. 39. Further, Mir
testified that the surgery alleviated the issues that prevented him from working and that he was
physically able to return to work in 2008. Id. Mir interviewed for the Position with L-3
Communications in 2011, which was three years after he underwent surgery to resolve the problem
that prevented him from working.

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The court is not persuaded by L-3 Communications’s argument that Mir is bound by his
statements to the SSA. Mir’s statements regarding his inability to work occurred approximately
five years prior to his interview for the Position at L-3 Communications, and Mir has established
that he underwent corrective surgery to correct the injury. Moreover, L-3 Communications’s
argument that Mir’s failure to update the SSA on his improved condition causes him to be bound
to his earlier statements to the SSA is equally unpersuasive. As the court noted in Cleveland, “an
ADA suit claiming that the plaintiff can perform [his] job with reasonable accommodation may
well prove consistent with [a disability benefits] claim that the plaintiff could not perform [his]
own job (or other jobs) without it.” Cleveland, 526 U.S. at 803. The court finds that the reasoning
in Cleveland applies to Mir’s circumstances. Mir’s statements to the SSA regarding his inability
to work are consistent with his claim that he could perform the duties of the Position with
reasonable accommodations. Therefore, the court determines that Mir has offered a sufficient
explanation to reconcile his sworn assertions to the SSA regarding his inability to work and his
claim that he was qualified for the Position under the ADA. Accordingly, Mir is not is judicially
estopped from being a “qualified individual” by his representation to the SSA in 2006.
b. Whether Mir Was Qualified for the Position
L-3 Communications further argues that Mir was not “otherwise” qualified for the Position.
To determine whether a Plaintiff is qualified for a position within the meaning of the ADA, a court
must determine whether an individual with a disability can show: “(1) [he] could perform the
essential functions of the job in spite of [his] disability,” or “(2) that a reasonable accommodation
of [his] disability would have enabled [him] to perform the essential functions of the job.” Moss
v. Harris Cty. Constable Precinct One, 851 F.3d 413, 417 (5th Cir. 2017) (internal quotation and
citations omitted); Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 807 (5th Cir. 1997).

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L-3 Communications contends that Mir did not meet the requisite minimum qualifications
set forth in the job posting because he had no experience with “NC programming” or knowledge
of “HDL Aircraft installation procedures.” Def.’s Mot. Summ. J. 21. The record, however,
establishes that knowledge of HDL Aircraft installation procedures was not a necessary minimum
qualification, as stated in L-3 Communications’s job posting for the Position. Def. App. 301.
Experience with HDL Aircraft installation procedures was only an additional advantage for
applicants. On the other hand, the job posting did state that a candidate for the Position “must”
have NC programming knowledge. Def. App. 301. The record establishes that Mir did not meet
this minimum requirement, as he conceded in his deposition that he had no experience with NC
programming. Def. App. 100:11-100:24. Plaintiff contends that because he had extensive
experience with more advanced software programming, he “would have easily been able to pick
up NC programming.” Pl.’s App. 83. Grant testified that he nonetheless brought Mir in for an
interview to further determine whether Mir’s experience was sufficient to qualify him for the
Position. Def. App. 257:12-257:23; 286:14-286:24.
At the time of Mir’s interview, by his own admission, he acknowledges that he is not
otherwise qualified for the position. The court is aware of no authority that requires a prospective
employer to accept a person for a position who does not meet all minimum qualifications. For the
reasons herein stated, Mir fails to establish a prima facie case of discrimination for his disability.
Accordingly, the court determines that there is no genuine dispute of material fact as to whether
Mir was otherwise qualified for the position. As the court has determined that Mir cannot establish
all of the elements of a discrimination claim under the ADA, the court need not discuss the
remaining elements, and L-3 Communications is entitled to judgment as a matter of law.

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B.

Prohibited Inquiries

The ADA also provides that an employer “shall not conduct a medical examination or make
inquiries of a job applicant as to whether such applicant is an individual with a disability or as to
the nature or severity of such disability.” 42 U.S.C. § 12112(d)(2)(A). L-3 Communications
argues that Plaintiff’s claim for improper inquiries regarding his foot injury fails because he lacks
damages for this claim. L-3 Communications contends that “damages liability under section
12112(d)(2)(A) must be based on something more than a mere violation of that provision.” Def.’s
Mot. Summ. J. 27 (citing Armstrong v. Turner Indus., Inc., 141 F.3d 554, 562 (5th Cir. 1998)).
The court agrees that damages liability must be based on something more than a violation of §
12112(d)(2)(A) of the ADA.
L-3 Communications contends that Mir has “failed to show any cognizable injury from any
of Grant’s alleged improper inquiries,” and his sworn testimony forecloses the possibility of any
such injury. Id. Mir contends that L-3 Communications’s contention that he has no evidence of
damages and that his testimony forecloses the possibly of damages is incorrect. Mir further
contends that even if he did not suffer any actual damages as a result of Grant’s improper medical
inquiries, he is entitled to recover at least nominal damages.
The court will first address L-3 Communications’s objections to Mir’s summary judgment
evidence. L-3 Communications objects to Mir’s Second Amended Interrogatories. Plaintiff’s First
Amended Interrogatory Answer No. 8 provides, “[b]ecause of the stress and anxiety I have
experienced from being passed over for a job I was qualified for because of my disability, I seek
compensatory damages in an amount to be determine by the jury.”

Def. App. 185.

L-3

Communications relied on this interrogatory answer in its Brief in Support of its Motion for
Summary Judgment to establish that Mir lacked the requisite damages for his claim of improper

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inquiries. Def.’s Br. 28-29. Plaintiff’s Second Amended Interrogatory Answer provides as
follows:
[b]ecause of the stress and anxiety, and depression I have experienced from being
passed over for a job I was qualified for because of my disability, and because of
the improper medical inquires Chad Grant made during my interview with L-3, I
seek compensatory damages in an amount to be determined by the jury.
Pl.’s App. 289-290 (emphasis added). L-3 Communications contends that the amended answer is
invalid because: (1) Mir altered important evidence, (2) Mir’s amendment prejudiced L-3
Communications, (3) there is no possibility of curing the prejudice with a continuance, and (4) Mir
failed to proffer a sufficient explanation for the amendment.
Mir contends that the court should overrule Defendant’s objection to its Second Amended
Interrogatory. Mir argues that he amended Plaintiff’s First Amended Interrogatory Answer No. 8
to comport with his prior deposition testimony and that Plaintiff’s Second Amended Interrogatory
Answer No. 8 did not add information that has not otherwise been made known. The court agrees.
Mir testified in his deposition that he suffered mental anguish because L-3 Communications
discriminated against him on the basis of his disability and because of the improper questions
Grant asked during his interview. Pl. App. 108:7-109:14. In his amended answer to Interrogatory
Question No. 8, Mir did not disclose any new information, therefore, the court overrules
Defendant’s objection and concludes that there is a genuine dispute of material fact as to whether
Grant made improper inquiries in violation of § 12112(d)(2)(A) of the ADA. *

*

L-3 Communications also objects to portions of Mir’s Declaration submitted after his
depositions. Defendant requests that the court strike a portion of Mir’s declaration regarding his lack of
knowledge on who made the decision not to hire him at L-3 Communications because Plaintiff’s declaration
is in violation of the “sham-affidavit rule,” which states that a party cannot create an issue of fact by an
affidavit contradicting his prior deposition testimony. See Powell v. Dallas Morning News L.P., 776 F.
Supp. 2d 240, 247 (N.D. Tex. 2011), aff’d, 486 F. App’x 469 (5th Cir. 2012). Mir’s Declaration does not
contradict his prior deposition testimony. Mir testified in his deposition that he did not know who made
the decision not to hire him at L-3 Communications. In his Declaration, Mir states that he believed Chad
grant was the decision maker, which is why he sent Grant a follow-up letter after the interview. The court
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IV.

Conclusion
For the reasons stated herein, the court determines that no genuine disputes of material

fact exist with regard to Plaintiff’s claim of ADA disability discrimination.

Defendant is,

therefore, entitled to judgment as a matter of law on this claim. The court determines that genuine
disputes of material fact exist with respect to Plaintiff’s claim of improper inquiries under the
ADA. Defendant is, therefore, not entitled to judgment as a matter of law on this claim, and it
remains for trial or other resolution by the parties. Accordingly, the court grants in part and
denies in part Defendant’s Motion for Summary Judgment Defendant’s Motion for Summary
Judgment (Doc. 40) for the reasons herein stated.
It is so ordered this 8th day of November, 2017.

_________________________________
Sam A. Lindsay
United States District Judge

has only considered evidence that is admissible pursuant to Rule 56 of the Federal Rules of Civil Procedure
and the summary judgment standard herein enunciated. Accordingly, the objection is overruled as moot,
except to the extent specifically addressed in this opinion.
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