Murphy v. Spears Manufacturing Company, Inc.

Filing 12

MEMORANDUM AND ORDER GRANTING 11 MOTION for Summary Judgment.(Signed by Judge Gray H. Miller) Parties notified.(rkonieczny)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MURL MURPHY,
Plaintiff,
v.
SPEARS MANUFACTURING COMPANY, INC.,
Defendant.

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CIVIL ACTION H-10-4259

MEMORANDUM AND ORDER
Pending before the court is defendant Spears Manufacturing Company, Inc.’s (“Spears”)
motion for summary judgment. Dkt. 11. Plaintiff’s response was due on September 21, 2011, but
no response has been filed. Under the Local Rules of the Southern District of Texas, "[f]ailure to
respond will be taken as a representation of no opposition." S.D. TEX. LOC. R. 7.4. After
considering the motion and the applicable law, the motion is GRANTED.
BACKGROUND
Plaintiff Murl Murphy worked for Spears from July 18, 2007 as a Technical Service
Representative until he was terminated on March 20, 2009. Dkt. 11 at 2-7. Murphy had a history
of performance issues beginning on May 9, 2008, and continuing through the date of his termination.
Id. More specifically, Murphy received a written warning on July 15, 2008 detailing eight specific
deficiencies in his performance and he was informed that a failure to remedy the deficiencies could
lead to “possible termination of employment.” Id. at 6.
Plaintiff was diagnosed with non-Hodgkin’s lymphoma in November of 2008, and he
informed his supervisor. Id. Plaintiff underwent chemotherapy from that point through March of
2009. Id. Plaintiff had difficulty performing his assigned sales calls due to complications arising
from his chemotherapy, but he did not inform his supervisor. Id. Plaintiff’s employment was

terminated on March 20, 2009 because he “failed to meet basic administrative duties required
relative to providing Weekly Itineraries and timely entry of Activity Reports” which echoed the
concerns in the written warning he received on July 15, 2008. Id. at 7.
Plaintiff filed a charge of discrimination with the Equal Employment Opportunity
Commission (“EEOC”) on April 23, 2009 and received his right to sue letter on August 5, 2010.
Dkt. 1-2. Plaintiff did not assert during the EEOC proceeding that Spears failed to accommodate
his disability. Plaintiff filed this case in state court alleging a violation of the Americans with
Disabilities Act (“ADA”). This case was removed to this court on the basis of federal question
jurisdiction. Dkt. 1. Spears moves for summary judgment asserting that plaintiff cannot meet his
burden of proving a prima facie case of discrimination, and that plaintiff’s accommodation claim
is not properly before the court because it was not presented to the EEOC. Dkt. 11. Plaintiff has
not responded to the motion.
ANALYSIS
A. Summary Judgment Standard
Summary judgment is proper if “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law.” FED. R. CIV.
P. 56(c); see also Carrizales v. State Farm Lloyds, 518 F.3d 343, 345 (5th Cir. 2008). The moving
party bears the initial burden of informing the court of all evidence demonstrating the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548 (1986).
Only when the moving party has discharged this initial burden does the burden shift to the nonmoving party to demonstrate that there is a genuine issue of material fact. Id. at 322. If the moving

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party fails to meet this burden, then it is not entitled to summary judgment and no defense to the
motion is required. Id.
“For any matter on which the non-movant would bear the burden of proof at trial . . . , the
movant may merely point to the absence of evidence and thereby shift to the non-movant the burden
of demonstrating by competent summary judgment proof that there is an issue of material fact
warranting trial.” Transamerica Ins. Co. v. Avenell, 66 F.3d 715, 718–19 (5th Cir. 1995); see also
Celotex, 477 U.S. at 323–25. To prevent summary judgment, “the non-moving party must come
forward with ‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348 (1986) (quoting FED. R. CIV. P.
56(e)).
As noted above, plaintiff did not respond to the motion for summary judgment. A court
cannot grant a “default” summary judgment in this situation. Eversley v. MBank of Dallas, 843
F.2dd 172, 174 (5th Cir. 1988). However, where no response has been filed to a well-pleaded
motion for summary judgment, a court may treat the facts set forth in the motion for summary
judgment as undisputed. Id.; see also Thompson v. Eason, 258 F.Supp.2d 508, 515 (N.D. Tex. 2003)
(where no opposition is filed, the nonmovant's unsworn pleadings are not competent summary
judgment evidence and movant' s evidence may be accepted as undisputed).
B. The McDonnell Douglas Framework
All ADA claims are subject to the burden-shifting framework established by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04, 93 S. Ct. 1817 (1973). See
Raytheon v. Hernandez, 540 U.S. 44, 50 n.3, 124 S. Ct. 513 (2003) (finding that McDonnell Douglas
burden-shifting scheme applies to discriminatory-treatment cases including those under the ADA).
McDonnell Douglas instructs that:
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The plaintiff must first establish a prima facie case of [discrimination] . . . . Once the
plaintiff presents a prima facie case, the defendant must then articulate a legitimate,
nondiscriminatory reason for the questioned employment action . . . . If the
defendant is able to do so, the burden shifts back to the plaintiff to produce evidence
that the defendant’s articulated reason is merely pretext for discrimination.
Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993); Nichols v. Loral Vought Sys.
Corp., 81 F.3d 38, 40 (5th Cir. 1996).
C. Disability Discrimination Claim
To establish a prima facie case of disability discrimination, a plaintiff must show (1) he is
disabled or is regarded as disabled; (2) he is qualified for the job; (3) he was subjected to an adverse
employment action on account of his disability; and (4) he was replaced by or treated less favorably
than non-disabled employees. Gowesky v. Singing River Hosp. Sys., 321 F.3d 503, 511 (5th Cir.
2003). Spears concedes the first two elements, but asserts that plaintiff cannot establish the third
and fourth elements. The court finds that the fourth element is not satisfied and, therefore, will grant
the motion for summary judgment.
To satisfy the fourth prong of his prima facie disability discrimination case, Murphy must
demonstrate that he was treated less favorably than other non-disabled employees. Gowesky, 321
F.3d at 511. The Fifth Circuit has held that to establish a prima facie case of discrimination, the
plaintiff must show that other employees were treated differently under circumstances “nearly
identical” to his. Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995). Plaintiff
has made no showing in this regard, and has, therefore, failed to establish a prima facie case of
disability discrimination. Spears is entitled to summary judgment on this claim.
D. Failure to Make a Reasonable Accommodation Claim
The ADA requires employers to provide “reasonable accommodations to the known physical
or mental limitations of an otherwise qualified individual with a disability who is an applicant or
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employee” unless doing so “would impose an undue hardship” to the employer. 42 U.S.C.
§ 12112(b)(5)(A); Barber v. Nabors Drilling U.S.A., Inc., 130 F.3d 702, 706 (5th Cir. 1997). The
term “qualified individual with a disability” means “an individual with a disability who, with or
without reasonable accommodation, can perform the essential functions of the employment position
that such individual holds or desires.” See 42 U.S.C. § 12111(8). The term “reasonable
accommodation” may include making existing facilities used by employees readily accessible and
usable by individuals with disabilities and granting part-time or modified work schedules. Id.
§ 12111(9). The employer’s obligation to provide a reasonable accommodation is triggered by the
employee’s request for an accommodation. See Taylor v. Principal Fin. Group, Inc., 93 F.3d 155,
165 (5th Cir. 1996) (citing the ADA’s implementing regulations).
An ADA plaintiff must exhaust administrative remedies before commencing an action in
federal court. Dao v. Auchan Hypermarket, 96 F.3d 787, 788-89 (5th Cir. 1996). A failure to
exhaust remedies will result in dismissal of plaintiff’s claims on the merits. Id. In this respect, an
ADA action is limited to the scope of the plaintiff's administrative charge and to the EEOC
investigation that can reasonably be expected to grow out of the charge of discrimination. Pacheco
v. Mineta, 448 F.3d 783, 789 (5th Cir. 2006). Plaintiff made no allegations before the EEOC that
he requested an accommodation, or that Spears failed to respond to such a request. Therefore,
plaintiff made no allegations in his EEOC complaint that could reasonably lead to an investigation
of a failure to accommodate claim. Therefore, administrative remedies have not been exhausted,
and Spears is entitled to summary judgment with respect to this claim.

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CONCLUSION
For the reasons states above, Spears’s motion for summary judgment (Dkt. 11) is
GRANTED.
It is so ORDERED.
Signed at Houston, Texas on October 17, 2011.

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Gray H. Miller
United States District Judge

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