Mead v. Lattimore Materials Company et al
MEMORANDUM OPINION AND ORDER: The court grants in part and denies in part Defendants' Motion for Summary Judgment (Doc. 25 ). Defendants' Motion for Summary Judgment is granted with respect to Mead's claim of interference under the FM LA and for disability discrimination under the Texas Labor Code. As Mead has failed to raise a genuine dispute of material fact as to these claims, they are hereby dismissed with prejudice. As genuine disputes of material fact remain for trial with r espect to Mead's FMLA discrimination and retaliation claims, Defendants' Motion for Summary Judgment is denied as to these claims. The court will reset the trial of this case and pretrial deadlines by separate order. (Ordered by Judge Sam A Lindsay on 2/9/2018) (sss)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
COMPANY AND HOLCIM
Civil Action No. 3:16-CV-0791-L
MEMORANDUM OPINION AND ORDER
Before the court is Defendants’ Motion for Summary Judgment (Doc. 25), filed March 17,
After careful consideration of the motion, response, reply, appendixes, record, and
applicable law, the court grants in part and denies in part Defendants’ Motion for Summary
Judgment (Doc. 25).
Procedural and Factual Background
Plaintiff Clinton Mead (“Mead”) brings this action against his former employer, Lattimore
Materials Company and Holcim LaFarge (“Defendants”), 1 alleging discrimination, retaliation, and
interference claims under the Family Medical Leave Act of 1993, 29 U.S.C. § 2601, et seq.
(“FMLA”); and (2) disability discrimination in violation of Chapter 21 of the Texas Labor Code,
Tex. Lab. Code Ann. § 21.001, et seq. (West 2015). See Pl.’s First Am. Compl. (Doc. 12).
The relationship between Lattimore Materials Company and Holcim Lafarge is not entirely clear from the
pleadings. Defendants assert that “Lattimore Materials Company is an assumed name for LafargeHolcim
Inc.” Defs.’ Summ. J. Br. 1 n.1 (Doc. 26). At this juncture, for purposes of clarity, when the parties refer
to the two entities collectively as “Defendants,” the court will similarly use the term “Defendants.” This
issue needs to be resolved prior to resolution or trial of this action.
Memorandum Opinion and Order - Page 1
On March 17, 2017, Defendants filed a motion for summary judgment seeking dismissal
of all Mead’s claims. The court now sets forth the facts in accordance with the standard in Section
II of this opinion.
Mead’s Employment as a Ready Mix Truck Driver
On or around July 7, 1997, Mead began his employment with Defendant Lattimore
Materials Company (“Lattimore”) as a truck driver. Mead drove a Ready Mix concrete truck
containing ready mix cement and delivered cement to Lattimore’s customers. As a Ready Mix
truck driver, Mead was required to drive long distances, maneuver the truck to deliver and pour
the cement, and perform tasks required to maintain the truck. Ready Mix truck drivers were
required to be medically certified in accordance with the United States Department of
Transportation (“DOT”) regulations to ensure their continuing ability to safely operate the truck.
Lattimore notified Mead each year when it was time for him to obtain medical recertification.
Ready Mix truck drivers were required to provide information concerning medical history, medical
conditions, and any medications taken, on a Medical Examination Report for Commercial Driver
Fitness Determination (“Medical Examination Report”). They were also required to sign the
Medical Examination Report certifying that the information provided was true and accurate. A
doctor, designated by Lattimore, would review the information provided by the driver, perform a
physical examination, and determine whether the driver met the standards to be recertified to safely
perform his or her duties.
Mead’s Diagnosis of Osteoporosis
In 2011, Mead was diagnosed with osteoporosis in both hands. The osteoporosis caused
him to experience pain in both hands. He testified at his deposition that either thumb may “lock
up,” preventing him from moving his hand or gripping an object. Defs.’ Summ J. App. 22, 32.
Memorandum Opinion and Order - Page 2
He further testified that his thumbs have locked while he was working, specifically when
“[g]rabbing the steering wheel, opening a bathroom – opening a door, going to the restroom.” Id.
at 33. Mead also testified that the pain did “not quite” stop him from being able to drive the truck,
but there have been times when “it was close.” Id. at 22. Mead’s medical records show he has
been prescribed numerous medications throughout the years to treat his osteoporosis and other
ailments, including Tylenol, Hydrocodone, Ultram, Advil, Xanax, Ibuprofen, Tramadol, Norco,
Steroid dose packs, Zanaflex, Tramadol, Phentermine, Hyzaar, and Valium. Id. at 14, 18, 23, 48,
54, 143-65. Mead did not list all the medications that he was taking on his annual Medical
Mead’s Requests for Intermittent FMLA Leave
Beginning in October 2014, Mead applied for and was granted FMLA leave. In March
2015, Mead was on short-term disability for a preexisting condition of hand and shoulder pain.
Cigna, Defendants’ FMLA administrator, provided him an intermittent leave of absence from
March 13, 2015, to March 16, 2015. Mead sought care with his primary care doctor, John
Connolly, M.D., and provided a doctor’s note to his employer. Mead returned to work on March
16, 2015. On June 19, 2015, Mead went to the emergency room for exhaustion, dehydration, high
blood pressure, and ligament tears in both wrists. He was referred to an orthopedic surgeon for
surgery and for a follow-up visit to his primary care doctor on June 26, 2015. On June 26, 2015,
Mead applied for intermittent FMLA leave to attend doctor appointments. That same day, Cigna
sent Mead a letter informing him that he was eligible for the requested leave but that a final
determination would be made after receipt of required information from his physician. On July
17, 2015, Cigna approved Mead for intermittent FMLA “self-care” leave for “eight hours three
times every month for office visits” retrospectively from March 13, 2015, to September 12, 2015.
Memorandum Opinion and Order - Page 3
Id. at 171-72. On September 8, 2015, Cigna extended Mead’s intermittent FMLA leave until
March 2016. Pl.’s Summ. J. App. 132. On August 17, 2015, Mead took and passed a DOT medical
examination, which recited that “due to High Blood Pressure,” he qualified for only a three-month
certificate. Defs.’ Summ. J. App. 142.
On August 28, 2015, a Friday, Mead experienced a sharp pain when his thumb locked up
after he jammed it while reaching for a ticket tube at Lattimore’s Royse City Plant. The pain
continued throughout the day. The next morning, when Mead discovered his hand was swollen,
he contacted his supervisor, Andy Such (“Such”), and informed him that his hand was swollen and
he needed to go to the emergency room. Mead did not return to work after leaving the emergency
room. Mead returned to work on Monday, August 31, 2015. That morning, Such and Doug Smith
(“Smith”), a production supervisor, questioned Mead about his absence from work on Saturday.
Such and Smith then sent summaries of their interview with Mead to human resources officer
Katina McIntosh (“McIntosh”), informing her that Mead told them he had injured his thumb when
reaching for the ticket tube at the Royse City Plant. At the end of that day, Defendants suspended
Mead without pay for failure to report a work-related injury. Mead acknowledges that he was
aware that Defendants required truck drivers to immediately report work-related injuries. The
record contains no evidence that Defendants filed any notice with the Texas Workforce
Commission pertaining to Mead’s injury.
During his suspension, McIntosh interviewed Mead, who informed her that he did not
consider the August 28 incident a work-related injury because it was a recurring medical condition.
In his Affidavit filed in support of his response brief, Mead testifies: “I didn’t have a work[-]related
injury. I had a pre-existing condition from defending myself in a fight on June 8, 2012.” Pl.’s
Memorandum Opinion and Order - Page 4
Summ J. App. 132. McIntosh ordered Mead to report for another DOT medical examination,
which he took and passed on September 9, 2015.
During Mead’s suspension, McIntosh decided on her own to review Mead’s previous
Medical Examination Reports to determine if he had disclosed any preexisting injury to his hand.
During her review, she discovered that Mead did not disclose any medical condition relating to his
hands in certain Medical Examination Reports, notwithstanding that each Medical Examination
Report contained a question asking whether the driver had a “missing or impaired hand, arm, foot,
leg, finger, toe[.]” Id. Defs.’ Summ. J. App. 90-142. Mead checked “no” while certifying that his
answers were “complete and true.” Id. at 12-13, 63-65, 90-142.
The Lattimore Employee Handbook (“Handbook”), under “Employee Conduct and
“unacceptable activities” as
“[w]illfully falsifying or
misrepresenting information on an application for employment, accident/incident report, or other
work record[.]” Id. at 178-179. Participating in an unacceptable activity “may result in immediate
termination of employment without warning.” Id. at 179. Mead was provided with a copy of the
Handbook and required to sign the acknowledgment form stating he had received copies of all
revisions to the Handbook.
A three-person human resources committee comprised of McIntosh, Bob Winningham and
Pat Lane determined that Mead should be terminated for failing to disclose his hand condition and
his medications on certain of his Medical Examination Reports, as this constituted falsifying work
records, a terminable offense under the “Employee Conduct and Disciplinary Action” section of
the Handbook. On September 15, 2015, McIntosh contacted Mead and notified him of his
Memorandum Opinion and Order - Page 5
termination. After his termination, Mead obtained a similar position at Charley’s Concrete, where
he continues to work without problems.
Mead’s EEOC Charge and This Lawsuit
Mead filed a charge of disability discrimination with the Equal Employment Opportunity
Commission (“EEOC”). The EEOC issued him a right-to-sue letter on February 3, 2016. On
February 24, 2016, Mead filed this action in the 44th Judicial District Court of Dallas County. On
March 21, 2016, Defendants removed the case to this court pursuant to 28 U.S.C. § 1441. On June
20, 2016, Mead filed his First Amended Complaint, the live pleading, alleging discrimination,
retaliation, and interference claims under the FMLA, and disability discrimination under Chapter
21 of the Texas Labor Code. Mead seeks actual, compensatory, and exemplary damages, as well
as reinstatement, attorney’s fees, and costs. On March 17, 2017, Defendants filed their motion for
summary judgment seeking dismissal of all Mead’s claims.
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
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.
Memorandum Opinion and Order - Page 6
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
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
Memorandum Opinion and Order - Page 7
“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.
Mead’s FMLA Claims
The FMLA allows eligible employees to take up to twelve weeks of leave in any one-year
period to address an employee’s serious health condition or that of a family member. 29 U.S.C. §
2612(a)(1)(C), (D). Leave taken under the FMLA to care for a family member is often labeled
“family-care” leave, and leave taken to address an employee’s health condition is frequently
referred to as “self-care” leave. Coleman v. Court of Appeals of Md., 566 U.S. 30, 34 (2012). The
FMLA creates a private right of action for equitable relief and damages “against any employer
(including a public agency) in any Federal or State court.” 29 U.S.C. § 2617(a)(2). Mead’s FMLA
claims relate only to “self-care” leave.
“Employers subject to the FMLA must comply with two separate ‘prohibited acts’
provisions found in Section 2615(a) of the FMLA.” Bryant v. Texas Dep’t of Aging & Disability
Servs., 781 F.3d 764, 768 (5th Cir. 2015). As summarized in Bryant:
Section 2615(a)(1) provides: “It shall be unlawful for any employer to interfere
with, restrain, or deny the exercise of or the attempt to exercise, any right provided
under this subchapter.” Subchapter 2615(a)(2) provides: “It shall be unlawful for
any employer to discharge or in any other manner discriminate against any
individual for opposing any practice made unlawful by this subchapter.”
This court has, at times, classified claims brought under Section 2615(a)(1)
as “prescriptive” and claims under 2615(a)(2) as “proscriptive.” See Cuellar v.
Keppel Amfels, L.L.C., 731 F.3d 342, 349 n.2 (5th Cir. 2013) (Elrod, J., concurring)
(collecting cases). At other times, this court has labeled the claims “interference”
and “retaliation” claims. See id.
Memorandum Opinion and Order - Page 8
Id. The prescriptive provisions “create[ ] a series of entitlements or substantive rights,” while the
proscriptive provisions “protect[ ] employees from retaliation or discrimination for exercising their
rights under the FMLA.” Mauder v. Metropolitan Transit Auth. of Harris Cty., Tex., 446 F.3d
574, 580 (5th Cir. 2006) (citation omitted).
Mead asserts that he was fired because Defendants became concerned with the “nature and
extent of the intermittent FMLA leave granted [him] by Defendants’ administrator, Cigna, and the
increasing severity of [his] arthritic flare[-]ups, and decided to get rid of him rather than
accommodate his need for occasional intermittent doctor visits, despite almost 20 years of loyal
service.” Compl. ¶ 1.04. He also contends that Defendants’ actions were designed to and did
unlawfully interfere with his rights under the FMLA. Mead alleges that “[a]s a result of the
interference, discrimination, and retaliation by Defendants, which were motivating factors in [his]
discharge, [he] suffered significant financial loss, and the loss of benefits of his employment,
including health insurance.” Id. ¶ 5.04.
Defendants argue they are entitled to summary judgment on Mead’s FMLA claims because
he cannot establish:
(1) a prima facie case of unlawful discrimination under the FMLA and even if he
could, he cannot establish that Defendants’ reasons for his discharge were a pretext
for unlawful discrimination;
(2) a prima facie case of unlawful retaliation under FMLA, and even if he could,
he cannot establish that Defendants’ reasons for his discharge were a pretext for
unlawful retaliation; [or]
(3) a prima facie case that Defendants interfered with his rights to take an FMLA
Defs.’ Summ. J. Br. 1 (Doc. 26). As Mead is bringing claims under both the prescriptive and
proscriptive provisions of the FMLA, and the court examines them separately.
Memorandum Opinion and Order - Page 9
Violations of Proscriptive Provisions of FMLA (Mead’s Discrimination
and Retaliation Claims)
Mead brings a claim against Defendants for discrimination and retaliation in violation of
the FMLA’s proscriptive provisions. Given that Mead has presented no direct evidence, the court
determines that this is an indirect evidence case. Generally, the McDonnell Douglas burdenshifting framework applies to determine whether an employer terminated an employee in
retaliation for exercising FMLA rights. See Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d 757,
768 (5th Cir. 2001); see generally McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Under this framework, the employee must first meet his burden of establishing a prima
facie case of discrimination and retaliation. Hunt, 277 F.3d at 768. If the employee succeeds in
making a prima facie case, the burden of production (though not persuasion) shifts to the employer
to “articulate a legitimate, nondiscriminatory or nonretaliatory reason” for its action. Id. If the
employer does this, the burden swings back to the employee to produce evidence sufficient to
support a finding by a preponderance of the evidence that the employer’s reason for its conduct is
a pretext for discrimination or retaliation. Id.; Auguster v. Vermillion Parish Sch. Bd., 249 F.3d
400, 403 (5th Cir. 2001).
Here, a modified McDonnell Douglas mixed-motive framework applies because Mead
alleges that FMLA discrimination was a motivating factor in his termination, rather than the sole
reason for it. See Richardson v. Monitronics Int’l, Inc., 434 F.3d 327, 333 (5th Cir. 2005) (holding
that the modified McDonnell Douglas mixed-motive framework applies to FMLA claims in which
an employee alleges that retaliatory animus was a motivating factor in an adverse employment
action); see generally Desert Palace, Inc. v. Costa, 539 U.S. 90, 101-02 (2003). The mixed-motive
framework modifies the third step in the standard McDonnell Douglas framework by allowing an
employee to avoid summary judgment by offering sufficient evidence to create a genuine dispute
Memorandum Opinion and Order - Page 10
of material fact “either that (a) the employer’s proffered reason is a pretext for discrimination, or—
and herein lies the modifying distinction—(b) that the employer’s reason, although true, is but one
of the reasons for its conduct, another of which was discrimination.” Richardson, 434 F.3d at 333.
“If the employee proves that discrimination was a motivating factor in the employment decision,
the burden again shifts to the employer, this time to prove that it would have taken the same action
despite the discriminatory animus.” Id. (original emphasis). 2
Prima Facie Case
To make out a prima facie case of retaliation under the FMLA, Mead must present evidence
that “(1) he was protected under the FMLA, (2) he suffered an adverse employment action; and
(3) the adverse action was taken because he sought protection under the FMLA.” Ion v. Chevron
USA, Inc., 731 F.3d 379 (5th Cir. 2013) (citing Mauder, 446 F.3d at 583)). 3 Defendants do not
The court recognizes that the Supreme Court has limited the applicability of the mixed-motive framework
in cases involving Title VII. See University of Texas Southwestern Med. Ctr. v. Nassar, 570 U.S. 338
(2013). The Fifth Circuit has not yet determined whether the reasoning of Nassar applies to FMLA
retaliation cases. See Wheat v. Florida Parish Juvenile Justice Comm'n, 811 F.3d 702, 706 (5th Cir. 2016)
(“Neither [the Fifth Circuit], nor the Supreme Court, has decided whether the heightened “but for” causation
standard required for Title VII retaliation claims applies with equal force to FMLA retaliation claims.”).
Defendants make no argument that the Nassar decision prevents a court from applying a mixed-motive
analysis in an FMLA retaliation case. In the absence of any argument or authority holding that Nassar
applies to Mead’s FMLA retaliation claims, the court, in keeping with other district courts in this division,
applies the mixed-motive standard. See, e.g., Cathcart v. YP Advert. & Publ'g LLC, 2017 WL 4298135, at
*4 (N.D. Tex. Sept. 27, 2017) (Lynn, C.J.) (allowing plaintiff bringing FMLA retaliation claim to proceed
under mixed-motive standard because Fifth Circuit has not held otherwise and employer failed to argue
otherwise);Wojcik v. Costco Wholesale Corp., 2015 WL 1511093, at *11, n.20 (N.D. Tex. Apr. 2, 2015)
(Fitzwater, J.) (assuming that plaintiff bringing FMLA retaliation claim can proceed under mixed-motive
standard because Fifth Circuit has not held otherwise); see also Mathis v. BDO USA, LLP, 2014 WL
975706, at * 6 (S.D. Tex. March 12, 2014) (applying mixed-motive standard to FMLA case “until a higher
court says otherwise”).
In Mauder, the Fifth Circuit stated that to establish a prima facie that he was fired in retaliation for his
request to take leave, an employee must show the following: “1) he was protected under the FMLA; 2) he
suffered an adverse employment action; and 3) he was treated less favorably than an employee who had not
requested leave under the FMLA or the adverse decision was made because he sought protection under the
FMLA.” Mauder v. Metropolitan Transit Auth. of Harris Cty., Tex., 446 F.3d 574, 583 (5th Cir. 2006)
Memorandum Opinion and Order - Page 11
challenge that Mead was protected by the FMLA and suffered an adverse employment decision.
They assert, however, that Mead cannot establish the third element of his prima facie case because
he cannot show that he was terminated because he took FMLA leave.
“In evaluating whether the adverse employment action was causally related to the FMLA
protection, the court shall consider the temporal proximity between the FMLA leave and the
termination.” Mauder, 446 F.3d at 583 (citation and internal quotation marks omitted). Further,
an employee “does not have to show that the protected activity is the only cause of [his]
termination.” Id. (citation omitted). An employee, however, “is required to show that the protected
activity and the adverse employment action are not completely unrelated.” Id. (citing Medina v.
Ramsey Steel Co., 238 F.3d 674, 684 (5th Cir. 2001)). 4
Mead points to his approximately twenty-years of employment with Defendants, his lack
of prior disciplinary problems, and the temporal proximity between his multiple leave requests in
2015 and his suspension and termination as evidence of a causal link. According to Mead, he “was
employed by Defendants for close to 20 years as a cement truck driver. Only after [he] was granted
FMLA leave beginning on March 13, 2015, which was extended on September 8 until March 2016,
was [he] suspended without pay for alleged failure to report a work-related injury and discharged
on September 15, 2015.” Pl.’s Summ J. Resp. Br. 11 (internal citations omitted). Mead further
notes that he was on FMLA leave when he was terminated.
Having considered the undisputed facts, the court concludes that Mead has sufficiently
demonstrated the requisite causal link to satisfy the third element of his prima facie case.
Otherwise stated, he has directed the court to sufficient evidence to show that his termination was
Defendants erroneously assert that under Mauder, “Plaintiff is required to show that the protected activity
and the adverse employment action are entirely related.” See Defs.’ Summ J. Br. 11 (emphasis added).
This is not the proper test. See Mauder, 446 F.3d at 583.
Memorandum Opinion and Order - Page 12
“not completely unrelated” to his exercise of his FMLA entitlements. See Mauder, 446 F.3d at
583. On June 26, 2015, Mead requested intermittent “self-care” leave under the FMLA from the
period from March 13, 2015, through September 12, 2015. On July 17, 2015, Mead was granted
the requested intermittent leave. It is undisputed that Mead was suspended on August 31, 2015,
and discharged on September 15, 2015. On September 8, 2015, Mead’s intermittent FMLA leave
was extended to March 2016. Thus, Mead was terminated one week after his intermittent FMLA
leave was extended. See Grubb v. Southwest Airlines, 296 F. App’x 383, 390 (5th Cir. 2008)
(citing Mauder, 446 F.3d at 593) (emphasizing temporal proximity in the prima facie context). It
is also undisputed that during Mead’s approximately twenty-year career as a truck driver with
Defendants, the record shows no disciplinary actions until he began to request intermittent “selfcare” FMLA leave. Further, as noted by the Fifth Circuit, “As a prima facie element, this third
prong is not an ultimate showing of liability, but merely determines whether there is enough
evidence to require an employer to respond.” Id. (citing Burdine, 450 U.S. at 253-54) (observing
that the burden is “not onerous” and only creates a “presumption”)).
Legitimate, Nondiscriminatory Reason for Termination
The burden of production now shifts to Defendants to offer a legitimate, nondiscriminatory reason for Mead’s termination. Defendants assert they terminated Mead for failing
to disclose a preexisting hand impairment and all his medications on certain of his Medical Exam
Reports, which omission constituted falsifying work records, a terminable offense under the
“Employee Conduct and Disciplinary Action” section of the Handbook. The court concludes that
Defendants’ explanation constitutes a legitimate, nondiscriminatory reason for Mead’s
termination. See Rachid v. Jack in the Box, 376 F.3d 305, 313 (5th Cir. 2004) (“[V]iolating a nondiscriminatory company policy is adequate grounds for termination[.]”); Mayberry v. Vought
Memorandum Opinion and Order - Page 13
Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1995); Watts v. L-3 Comm’ns Corp., 2013 WL 3789868,
at *6 (N.D. Tex. July 22, 2013) (Fish, J.) (“A violation of a company policy is unquestionably a
legitimate, nondiscriminatory reason for termination.”) (collecting cases).
In this third step, Mead “bears the burden of offering sufficient evidence to create a genuine
dispute of material fact that [Defendants’] nondiscriminatory reasons, although true, are only some
of the reasons for [their] conduct, another of which was discrimination.” Ion, 731 F.3d at 391. In
other words, Mead must offer evidence to show “that the exercise of his FMLA rights was a
motivating factor in his termination.” Id. While the presumption of discrimination is no longer
operative once the employer meets its burden of production, “the evidence establishing the
plaintiff’s prima facie case and inferences properly drawn therefrom” may still be considered “on
the issue of whether the defendant’s explanation is pretextual.” Reeves, 530 U.S. at 143 (citation
Mead offers the following evidence: (1) Defendants required him to take multiple and
duplicative medical examinations, notwithstanding that his previous certifications had not yet
expired; (2) Defendants have no record of providing notice of his work-place injury to the Texas
Workers’ Compensation Commission, notwithstanding that they suspended him on August 31,
2015, for failure to report a work-related injury; (3) Based on advice from his physician, Dr.
Connolly, Mead believed his hand pain was not a reportable impairment; 5 (4) Defendants’ reasons
for suspending him on August 31, 2015, and terminating him two weeks later, are inconsistent;
With respect to Mead’s osteoarthritis in his hands, Dr. Connolly testified: “If you can go to work and
perform your duties and you’re a little stiff and sore, I think that’s part of any potential given job. Especially
driving a cement truck. Almost every one of us if we live long enough, we will get . . . we will get some
form of that [osteoarthritis], yes, very common.” Pl.’s Summ. J. App. 92.
Memorandum Opinion and Order - Page 14
and (5) Even though Defendants had the ability to discipline him less severely, they chose to fire
him for a first offense.
Drawing all reasonable inferences in favor of Mead, as the nonmoving party, and
considering this evidence, in conjunction with the evidence already discussed above establishing
his prima facie case, the court concludes that Mead has offered sufficient evidence from which a
jury could reasonably conclude that Defendants were attempting to stop him from taking FMLA
leave or to punish him for taking FMLA leave. That McIntosh took it upon herself to scour Mead’s
records after he was suspended to look for possible lapses in reporting could lead a reasonable
juror to conclude that Defendants were looking for a reason to terminate Mead. Given the totality
of the evidence, it is sufficient to raise a genuine dispute of material fact as to whether Mead’s
FMLA-protected leave was a motivating factor in Defendants’ decision to terminate him.
Accordingly, the court will deny Defendants’ Motion for Summary Judgment as to Mead’s FMLA
discrimination and retaliation claims.
Violations of Prescriptive Provisions of FMLA (Mead’s FMLA
Mead also asserts a claim for FMLA interference. Under 29 U.S.C. § 2615(a)(1), an
employer may not “interfere with, restrain, or deny the exercise of or the attempt to exercise” any
right provided under the FMLA. 29 U.S.C. § 2615(a)(1). Once the right to the benefit is
established, the employee is due the benefit, regardless of the intent of the employer. Nero v.
Indus. Molding Corp., 167 F.3d 921, 927 (5th Cir. 1999). To establish a prima facie case of
interference under the FMLA, an employee must show that: (1) he was an eligible employee under
the FMLA; (2) the employer was subject to the FMLA’s requirements; (3) he was entitled to
FMLA leave; (4) he gave notice to the employer of his intent to take FMLA leave; and (5) he was
denied an entitlement under the FMLA, or the employer failed to respect the employee’s FMLA
Memorandum Opinion and Order - Page 15
entitlements. Under the fifth element of the prima facie test, an employee must prove, or raise a
genuine dispute of material fact, both that the employer interfered with, restrained, or denied him
exercise of FMLA rights, and also that the employee was prejudiced by such violation. Ragsdale
v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002) (“To prevail under the cause of action set
out in § 2617, an employee must prove, as a threshold matter, that the employer violated § 2615
by interfering with, restraining, or denying his or her exercise of FMLA rights. Even then, § 2617
provides no relief unless the employee has been prejudiced by the violation . . . .”).
Mead’s sole contention in support of his FMLA interference claim is that Defendants
demanded duplicative medical examinations. He has failed to establish, or raise a genuine dispute
of material fact, however, that these examinations had any effect on his ability to exercise his
FMLA benefits. Further, it is undisputed that all of Mead’s FMLA requests were ultimately
granted, and he cannot, therefore, demonstrate that he was denied an entitlement or was prejudiced
under the FMLA. See Ragsdale, 535 U.S. at 89. Mead testified at his deposition that Defendants
never prevented him from taking FMLA leave:
Okay. Was there ever an occasion when the company would not let you take off
FMLA time to see a doctor?
Not that I – that I can remember.
Okay. I mean, every time you needed to leave work to go see Dr. Connolly or
anybody else, were you granted that time off?
Yes, I believe I was.
Defs.’ Summ J. App. 26-27.
The court concludes that Mead has failed to raise a genuine dispute of material fact to
support his claim that Defendants interfered with his FMLA rights. Accordingly, Defendants are
Memorandum Opinion and Order - Page 16
entitled to judgment as a matter of law on Mead’s FMLA interference claim, and the court will
grant Defendants’ Motion for Summary Judgment on this claim.
Mead’s Disability Discrimination Claim
Mead also brings a claim for disability discrimination under Chapter 21 of the Texas Labor
Code. Tex. Lab. Code Ann. § 21.001, et seq. (West 2015). Section 21.051 of the Texas Labor
Code prohibits discrimination in employment based on “race, color, disability, religion, sex,
national origin, or age.” Id. § 21.051. Mead alleges he was disabled because of osteoporosis in
his thumbs, and that Defendants’ decision to terminate him was motivated by his disability.
To establish a prima facie case of disability discrimination, a plaintiff must show that:
(a) [he] is disabled, has a record of having a disability, or is regarded as disabled,
(b) [he] is qualified for [his] job, (c) [he] was subjected to an adverse
employment action on account of [his] disability or the perception of [his]
disability, and (d) [he] was replaced by or treated less favorably than nondisabled employees.
Drechsel v. Liberty Mut. Ins. Co., 695 F. App’x 793, 798 (5th Cir. 2017) (per curiam) (brackets
in original) (quoting EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 615 (5th Cir. 2009)). 6
As both the Texas Labor Code and the Americans with Disabilities Act (“ADA”) prohibit
disability discrimination, courts look to analogous federal precedent when interpreting the Texas
Labor Code. See NME Hosps., Inc. v. Rennels, 944 S.W.2d 142, 144 (Tex. 1999); Kiser v.
Original, Inc., 32 S.W.3d 449, 452 (Tex.App.—Houston [14 Dist.] 2000, no pet.); Rodriguez v.
The court notes that Texas courts of appeal have held that to establish a prima facie case of disability
discrimination, a plaintiff must show (1) he has a disability; (2) he was qualified for the job; and (3) an
adverse employment decision was made because of his disability. See, e.g., Donaldson v. Texas Dep’t of
Aging & Disability Servs., 495 S.W.3d 421, 436-37 (Tex. App.—Houston [1st Dist.] 2016, pet. denied);
Texas Dep’t of State Health Servs. v. Rockwood, 468 S.W.3d 147, 156 (Tex. App.—San Antonio 2015, no
pet.). As the outcome in this case is the same under either formulation, this court, like other courts in the
Dallas Division, will assume that the four-element prima facie case set out in Drechsel applies. See, e.g.,
Alviar v. Macy’s Inc., 2017 WL 4698449, at *6 (N.D. Tex. Oct. 19, 2017) (Fitzwater, J.).
Memorandum Opinion and Order - Page 17
ConAgra Grocery Prods. Co., 436 F.3d 468, 474-74 (5th Cir. 2006); Troupe v. Cintas Corp., 2000
WL 1056327, at *2 (N.D. Tex. July 31, 2000) (Lynn, J.). 7
A plaintiff bringing a state-law discrimination claim can prove discrimination through
direct or circumstantial evidence. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629,
634 (Tex. 2012). When a plaintiff lacks direct evidence, as in this case, he can rely on
circumstantial evidence using “the burden-shifting mechanism of McDonnell Douglas.” Id.
(citation omitted); see also Machinchick v. PB Power, Inc., 398 F.3d 345, 356 (5th Cir. 2005)
(confirming that “at summary judgment, the McDonnell Douglas burden-shifting analysis still
applies to discrimination claims” brought under Texas’s antidiscrimination laws).
As previously stated in connection with Mead’s FMLA claims, the McDonnell Douglas
framework consists of three stages. First, Mead must establish a prima facie case of discrimination,
which “creates a presumption that [Defendants] unlawfully discriminated against [him].” Burdine,
450 U.S. at 254. If Mead establishes a prima facie case, Defendants must set forth a legitimate,
nondiscriminatory reason for the employment action taken against him. Machinchick, 398 F.3d at
It is in the next step that state law claims distinguish themselves from those brought under
federal law. See, e.g., Arismendez v. Nightingale Home Health Care, Inc., 493 F.3d 602, 607 (5th
Cir. 2007) (noting the difference). While a plaintiff must, for purposes of federal law, “establish
The ADA was amended by the ADA Amendments Acts of 2008 (“ADAAA”), which took effect on
January 1, 2009. 42 U.S.C. § 12101, et seq. The ADAAA made it “easier for people with disabilities to
obtain protection under the ADA.” Weems v. Dallas Indep. Sch. Dist., 260 F. Supp. 3d 719, 727-28 (N.D.
Tex. 2017) (Lindsay, J.) (quoting Cannon v. Jacobs Field Servs. N. Am., Inc., 813 F.3d 586, 590 (5th Cir.
2016) (in turn quoting 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.” Cannon, 813 F.3d at 590
(internal quotation marks 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. at 591 (quoting 29 C.F.R. § 1630.2(j)(1)(ii)). To the extent either party relies
on superseded provisions of the ADA in support of an argument, the court gives no weight to that argument.
Memorandum Opinion and Order - Page 18
by a preponderance of the evidence that the articulated reason was merely a pretext for unlawful
discrimination,” McInnis v. Alamo Cmty. Coll. Dist., 207 F.3d 276, 280 (5th Cir. 2000), Texas law
allows a lesser showing. On a state-law discrimination claim, a plaintiff can defeat a motion for
summary judgment if he can show, or raise a genuine dispute of material fact, that, even if the
defendant’s stated reason is true, that another motivating factor was the protected characteristic.
See Tex. Lab. Code Ann. § 21.125 (West 2015) (“Except as otherwise provided by this chapter,
an unlawful employment practice is established when the complainant demonstrates that . . .
disability was a motivating factor for an employment practice, even if other factors also motivated
the practice.”); Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 480 (Tex. 2001) (“The plain
meaning of [section 21.125 of the Texas Labor Code] establishes ‘a motivating factor’ as the
plaintiff’s standard of causation in a [section 21.051] unlawful employment practice claim,
regardless of how many factors influenced the employment decision.”).
In support of summary judgment on Mead’s state-law disability discrimination claim,
Defendants argue that Mead “cannot establish a prima facie case under the Texas Labor Code
because (1) [he] does not have a ‘disability’ as defined by the Code; (2) [he] has no evidence that
Defendants terminated him due to his alleged disability and (3) [he] was terminated because he
falsified records, not a pretext for disability discrimination.” Defs.’ Summ. J. Br. 18 (Doc. 26).
Defendants further contend that, even assuming arguendo that Mead had met the elements of his
prima facie case, he cannot establish that their proffered legitimate, nondiscriminatory reasoning
for firing him was a pretext for unlawful intentional discrimination. Defs.’ Reply 10 (Doc. 33).
Prima Facie Case
The court first addresses Defendants’ contention that Mead has failed to establish that he
was disabled within the meaning of section 21.002 of the Texas Labor Code, which is the first
Memorandum Opinion and Order - Page 19
element of his prima facie case. Section 21.002(6) of the Texas Labor Code defines “disability”
as “a mental or physical impairment that substantially limits at least one major life activity of that
individual, a record of such an impairment, or being regarded as having such an impairment.” Tex.
Lab. Code Ann. § 21.002(6) (West 2015). Similarly, 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).
Mead appears to be advancing a claim that he has an impairment that substantially limits
at least one major life activity, work, or that he was “regarded as” having such an impairment, but
does not make any allegation or argument to support a claim that he has a record of such an
Defendants contend that Mead has failed to establish that he either has an
“impairment that substantially limits at least one major life activity” or was “regarded as” having
such an impairment.
Whether Mead Had, or Has, an “Impairment that Substantially
Limits at Least One Major Life Activity”
One of the stated purposes of the Texas Labor Code is to “provide for the execution of the
policies embodied in Title I of the Americans with Disabilities Act of 1990 and its subsequent
amendments.” Id. § 21.001(3). Consistent with the federal regulations construing the ADA, Texas
courts have found that major life activities include “caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.” Union Carbide Corp. v.
Mayfield, 66 S.W.3d 354 (Tex.App.—Corpus Christi 2001, no pet.) (citation omitted). The Code
of Federal Regulations prescribes that the term “substantially limits” “shall be construed broadly
in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA.” 29
C.F.R. § 1630.2(j)(1)(i). In determining whether an individual is substantially limited in a major
Memorandum Opinion and Order - Page 20
life activity, Texas courts consider “(1) the nature and severity of the impairment; (2) the duration
or expected duration of the impairment; and (3) the permanent or long-term impact, or the expected
or long-term impact of or resulting from the impairment.” Union Carbide, 66 S.W.3d at 360
Defendants contend that Mead has failed to establish that he has a mental or physical
impairment that substantially limits at least one major life activity. The court agrees.
Mead asserts that his disability is osteoporosis, sometimes referred to as osteoarthritis, of
his thumbs. Dr. Connolly, Mead’s physician, testified at his deposition that Mead suffered from
osteoarthritis of the thumbs, and that an x-ray report he reviewed stated: “Severe osteoarthritis at
base of thumb.” Pl.’s Summ. J. App. 82. Dr. Connolly further testified that Mead could experience
“episodic flare-ups,” which could “come and go.” Id. at 85. Dr. Connolly testified that Mead told
him that sometimes his hand pain would “slow him down at the job,” thereby affecting his ability
to do his job. Id. at 81. Dr. Connolly also testified that he never recommended that Mead “not
perform his normal duties, because [Mead] never told [him] the pain got that bad.” Id. at 91.
In response to questions from counsel for Defendants as to whether the osteoporosis in his
thumbs prevented him from driving a truck, Mead stated that it does not interfere with his ability
to drive a truck:
Your disability doesn’t prevent you from driving a truck, which I think you
indicated would be anywhere from 40 to 60 hours a week?
20 to 65.
20 to 65. Is that correct?
Doesn’t interfere with it?
Memorandum Opinion and Order - Page 21
Defs.’ Summ. J. App. 17. Mead further testified that his osteoporosis does not limit him: “Well,
it doesn’t prevent me from doing a lot of stuff. It’s just I deal with it.” Id. He further testified
that sometimes he has lingering pain in his hands all day, and this can stop him from pursuing
certain hobbies, such as hunting and fishing. Id. at 22. When asked if he ever had to stop driving
the truck because of pain, he stated: “Not quite, but - - but it was close.” Id.
Viewing all evidence in the light most favorable to Mead, and taking into account the
ADAAA and its aim to broaden the definition of “disability,” the court concludes that he has not
established that he is “substantially limited” in his ability to work. No evidence in the record
suggests that Mead’s impairment substantially limited his ability to perform the job he had with
Defendants. Further, as previously noted, Mead testified at his deposition that he could perform
his duties and that his osteoporosis in his hands did not prevent him from doing his job. While he
stated that sometimes he had pain all day, he testified that it did not stop him from working.
With regard to Dr. Connolly’s testimony that Mead’s osteoarthritis could cause “episodic
flare-ups” that could interfere with his work abilities, the Fifth Circuit has held that intermittent
flare-ups that are infrequent cannot be considered substantially limiting. Waldrip v. General
Electric Co., 325 F.3d 652, 656 (5th Cir. 2003) (holding that a plaintiff’s chronic pancreatitis was
not considered a “disability” because his occasional flare-ups were not substantially limiting).
Waldrip involved a situation in which the plaintiff's doctor testified that, “at most, he occasionally
must miss a few days of work when his chronic pancreatitis flares up.” Id. at 657. In this case,
the evidence similarly shows that any flare-ups were intermittent and episodic, and not frequent.
Mead relies solely on the Fifth Circuit’s decision in Carmona v. Southwest Airlines to support his
claim that he was disabled. 604 F.3d 848 (5th Cir. 2010). In Carmona, the court held that a
Memorandum Opinion and Order - Page 22
plaintiff’s psoriatic arthritis rendered him disabled because it substantially interfered with his
ability to walk. The court noted that the plaintiff was immobile during flare-ups, which were so
frequent that he missed half of his working days each month. Id. at 857-58. The court in Carmona
distinguished the Waldrip decision as follows:
However, Waldrip involved a situation in which the plaintiff’s doctor testified that,
at most, he occasionally must miss a few days of work when his chronic pancreatitis
flares up. The occasional flare-ups in Waldrip and the frequent, recurrent flare-ups
that Carmona experiences are substantially different situations, though both could
be described as intermittent. In Waldrip, the plaintiff’s occasional flare-ups did not
substantially limit any of his major life activities, because they were so few and far
between. Carmona spends anywhere from about one-third to about one-half of each
month unable to walk without excruciating pain. It would be difficult to argue that
this does not substantially limit his ability to walk.
Carmona, 604 F.3d at 858-59 (internal punctuation and citations omitted). 8 As Defendants
correctly argue, the summary judgment record makes this case much more analogous to Waldrip
than to Carmona. As such, the court finds Carmona distinguishable and, therefore, not persuasive
on the record presented in this matter.
Having carefully considered Mead’s deposition testimony, Dr. Connolly’s opinion as to
the impact of Mead’s osteoarthritis, and the record, and viewing all evidence in the light most
favorable to Mead, the court concludes that Mead has not provided sufficient evidence from which
a reasonable jury could find that he was an individual with a “disability” within the meaning of
the Texas Labor Code and ADA. A reasonable jury could not conclude that Mead had, or has, an
impairment that substantially limited his major life activity of working.
Whether Defendants “Regarded” Mead as “Disabled”
The ADA covers individuals who have been discriminated against because they are
“regarded as having . . . an actual or perceived physical or mental impairment whether or not the
Although Waldrip was decided prior to the ADAAA, it is relevant to the court’s analysis, as the court in
Cardona, upon which Mead relies heavily, goes to great lengths to distinguish Waldrip based on the facts.
Memorandum Opinion and Order - Page 23
impairment limits or is perceived to limit a major life activity.” 42 U.S.C. §§ 12102(1)(C), 3(1)(A).
A person, however, is not “regarded as” disabled if his or her impairment is “transitory and minor.”
42 U.S.C. §§ 12102(1)(C), 3(1)(B). “A transitory impairment is an impairment with an actual or
expected duration of 6 months or less.” Id.
Mead’s alternative theory for establishing that he is disabled appears to be that at the time
Defendants fired him, they regarded him as having a physical impairment, not that he in fact had
such an impairment. Defendants contend that Mead has failed to establish that he was “regarded
as” having an impairment.
The record in this case does not raise a genuine dispute of material fact as to whether Mead
was “regarded as” disabled. There is no evidence that Defendants perceived Mead as disabled. In
his response to Defendants’ Motion for Summary Judgment, Mead asserts that Defendants are
“equitably estopped” from claiming he does not have a protected disability, and that it “is apparent”
that Defendants “regarded” him as having a disability, because he was terminated for failing to
disclose a preexisting condition involving osteoarthritis in his hands on certain Medical
Examination Reports. See Pl.’s Summ. J. Resp. Br. 17-18 (Doc. 28). As Defendants note in their
reply brief, Mead was terminated because of his failure to disclose health history information in
the Medical Examination Reports, which included the omission of various medications he took
and any impairment related to his hands. Termination for falsifying work records by failing to
disclose medical history information in violation of company policy is not a concession that an
employee has a “disability” as that term is defined under the Texas Labor Code and ADA. Because
Mead cannot raise a genuine dispute of material fact as to whether he was disabled or “regarded
as” disabled under section 21.002(6) of the Texas Labor Code or the ADA, Defendants’ Motion
for Summary Judgment on Mead’s state law disability discrimination claim will be granted.
Memorandum Opinion and Order - Page 24
Even were the court to assume, arguendo, that Mead had established his prima facie case
of disability discrimination, Defendants have set forth a legitimate, nondiscriminatory reason for
his discharge, and there is simply insufficient evidence in the record to establish, or raise a genuine
dispute of material fact, that Defendants’ decision to terminate Mead’s employment was motivated
by his disability. Aside from his conclusive, speculative, and subjective belief, which is not
competent summary judgment evidence, see Forsythe and Eason, supra, Mead presents nothing
to support his claim of disability discrimination. Accordingly, in addition to granting summary
judgment in favor of Defendants because Mead has failed to establish a prima facie case of
disability discrimination, even if he had, the court would nevertheless grant Defendants’ Motion
for Summary Judgment because Mead has failed to raise a genuine dispute of material fact that his
disability was a motivating factor in Defendants’ decision to terminate his employment.
For the reasons stated herein, the court grants in part and denies in part Defendants’
Motion for Summary Judgment (Doc. 25). Defendants’ Motion for Summary Judgment is granted
with respect to Mead’s claim of interference under the FMLA and for disability discrimination
under the Texas Labor Code. As Mead has failed to raise a genuine dispute of material fact as to
these claims, they are hereby dismissed with prejudice. As genuine disputes of material fact
remain for trial with respect to Mead’s FMLA discrimination and retaliation claims, Defendants’
Motion for Summary Judgment is denied as to these claims. The court will reset the trial of this
case and pretrial deadlines by separate order.
Memorandum Opinion and Order - Page 25
It is so ordered this 9th day of February, 2018.
Sam A. Lindsay
United States District Judge
Memorandum Opinion and Order - Page 26
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