Edwards v. Chevron USA, Inc
Filing
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MEMORANDUM OPINION AND ORDER DENYING 21 MOTION for Summary Judgment.(Signed by Judge Gray H. Miller) Parties notified.(rkonieczny )
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
DONNA EDWARDS,
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Plaintiff,
v.
CHEVRON U.S.A., INC.,
Defendant.
CIVIL ACTION H-11-2568
M EMORANDUM O PINION & O RDER
Pending before the court is defendant Chevron U.S.A., Inc.’s motion for summary judgment.
Dkt. 21. Upon consideration of the motion, the response, the reply, the summary judgment record,
and the applicable law, the motion is DENIED.
BACKGROUND 1
Donna Edwards brings this discrimination case pursuant to the Americans with Disabilities
Act, 42 U.S.C. § 12112 et seq., alleging that her supervisors at Chevron discriminated against her
on the basis of her disability—Irritable Bowel Syndrome—when they terminated her employment
and denied her a reasonable accommodation.
SUMMARY JUDGMENT STANDARD
Summary judgment is proper if “the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a); see
also Carrizales v. State Farm Lloyds, 518 F.3d 343, 345 (5th Cir. 2008). The mere existence of
some alleged factual dispute between the parties will not defeat an otherwise properly supported
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Because the court holds that there are genuine issues of material fact in this case precluding summary
judgment, it makes no findings of fact at this time.
motion for summary judgment; there must be an absence of any genuine issue of material fact.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S. Ct. 2505 (1986). An issue is
“material” if its resolution could affect the outcome of the action. Burrell v. Dr. Pepper/Seven Up
Bottling Grp., Inc., 482 F.3d 408, 411 (5th Cir. 2007). “[A]nd a fact is genuinely in dispute only if
a reasonable jury could return a verdict for the non-moving party.” Fordoche, Inc. v. Texaco, Inc.,
463 F.3d 388, 392 (5th Cir. 2006).
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 non-moving party to demonstrate that there is a genuine issue of material
fact. Id. at 322. If the moving 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. v. Zenith Radio Corp., 475 U.S. 574, 587, 106
S. Ct. 1348 (1986) (quoting former Fed. R. Civ. P. 56(e)).
When considering a motion for summary judgment, the court must view the evidence in the
light most favorable to the non-movant and draw all justifiable inferences in favor of the nonmovant. Envtl. Conservation Org. v. City of Dallas, Tex., 529 F.3d 519, 524 (5th Cir. 2008). The
court must review all of the evidence in the record, but make no credibility determinations or weigh
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any evidence; disregard all evidence favorable to the moving party that the jury is not required to
believe; and give credence to the evidence favoring the non-moving party as well as to the evidence
supporting the moving party that is uncontradicted and unimpeached. Moore v. Willis Indep. Sch.
Dist., 233 F.3d 871, 874 (5th Cir. 2000). However, the non-movant cannot avoid summary judgment
simply by presenting “conclusory allegations and denials, speculation, improbable inferences,
unsubstantiated assertions, and legalistic argumentation.” TIG Ins. Co. v. Sedgwick James of Wash.,
276 F.3d 754, 759 (5th Cir. 2002); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en
banc). By the same token, the moving party will not meet its burden of proof based on conclusory
“bald assertions of ultimate facts.” Gossett v. Du-Ra-Kel Corp., 569 F.2d 869, 872 (5th Cir. 1978);
see also Galindo v. Precision Am. Corp., 754 F.2d 1212, 1221 (5th Cir. 1985).
ANALYSIS
The ADA provides that “[n]o covered entity shall discriminate against a qualified individual
on the basis of 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).
1.
Disability
“As a threshold requirement in an ADA claim, the plaintiff must, of course, establish that he
has a disability.” Waldrip v. Gen. Elec. Co., 325 F.3d 652, 654 (5th Cir.2003) (internal quotation
omitted). To show that she has a disability, a plaintiff must show:
(A) a physical or mental impairment that substantially limits one or more major life
activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment
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42 U.S.A. § 12102(1). A physical or mental impairment is “[a]ny physiological disorder or
condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as
neurological, . . ., digestive, . . ., and endocrine.” 29 C.F.R § 1630.2(h)(1). And a major life activity
includes “[t]he operation of a major bodily function, including . . . digetive, . . .,bowel, [and] bladder
. . . .” Id. at 1630.2(i)(1)(ii). In 2008 Congress amended the ADA with the intention, among other
things, that the definition of disabled be read more broadly than the definition developed by the
courts at the time. ADA Amendments Act of 2008, PL 110-325, Section 2(a)(8), 122 Stat. 3553,
3553. The definition of disability now includes “[a]n impairment that is episodic or in remission .
. . if it would substantially limit a major life activity when active.” 29 C.F.R. § 1630.2(j)(vii).
Edwards alleges and has adduced her sworn statements that she has been diagnosed with a medical
bowel disease which has flared up from time to time during her life—most recently requiring that
she take several months medical leave in early 2010. Dkt. 21, Ex. 1, Dkt. 22, Ex. 2. Under the
amended ADA, that is sufficient. Accordingly, for the purposes of the ADA, Edwards is disabled.
After the passage of the amended the ADA, the inquiry focuses less on the question of
whether a plaintiff is disabled and more on the actions taken by the employer. See Garner v.
Chevron Phillips Chem. Co., L.P., 834 F. Supp. 2d 528, 536–38 (S.D. Tex. 2011) (discussing the
different standards). In the instant case, Edwards claims that Chevron violated the ADA in two
ways, first Edwards alleges that Chevron terminated her employment because of her disability. And
second, Edwards alleges that Chevron failed to make a reasonable accommodation for her when
Chevron would not allow her to telecommute.
2.
Unlawful Termination
In reviewing an ADA case involving an adverse employment action, the court uses the
burden-shifting framework of McDonnell Dounglas Corp. v. Green, 411 U.S. 792 (1973). E.E.O.C.
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v. Chevron Phillips Chem. Co., 570 F3d 606, 615 (5th Cir. 2009). “Under this framework, the
plaintiff must first establish a prima facie case of discrimination.” Hammond v. Jacobs Field Servs.,
2012 WL 6033078 at *2 (5th Cir. 2012) (citing McDonnell, 411 U.S. at 802). “If the plaintiff
succeeds, then the employer must articulate a legitimate, nondiscriminatory reason for the adverse
employment action.” Id. “If the employer meets its burden, then the burden of production shifts
back to the plaintiff to show that the defendant's proffered reason was a pretext for unlawful
discrimination.” Id. A prima facie case coupled with a showing that the proffered reason was
pretextual will usually be sufficient to survive summary judgment. Id.
To make her prima facie case, Edwards must demonstrate that “(1) she is disabled, has a
record of having a disability, or is viewed as disabled; (2) she is qualified for her job; (3) she was
subjected to an adverse employment action on account of her disability or the perception of her
disability; and (4) she was replaced by, or treated less favorably than, non-disabled employees.”
Garner, 834 F. Supp. 2d at 540. As discussed above, Edwards is disabled within the meaning of the
Act. Furthermore, no party argues that Edwards is not qualified or that she did not suffer an adverse
employment action. Therefore, she need only demonstrate that she was treated less favorably than
non-disabled employees to make her prima facie case. Edwards points to evidence in the record that
at one point the other employees on the BMP team received similar performance critiques to hers
but none was placed on a Performance Improvement Plan or had their employment terminated.
Dkt. 21, Ex. 7. Chevron argues that these employees were not similarly situated. However, the BMP
team all reported to the same manager and had the same job duties. Dkt. 21 at 4. They may not be
identical, but the Fifth Circuit requires nearly identical comparators, not identical. See Turner v.
Kansas City Ry. Co., 675 F.3d 887, 893 (5th Cir. 2012). Chevron also argues that the performance
reviews cited by Edwards were from 2009 and are therefore too remote in time to be comparators.
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At this point, the summary judgment record consists of Edwards’s deposition testimony that others
received similar job reviews and a copy of at least one review that supports the allegation that all of
the BMP employees received similar critiques. Dkt. 21, Ex. 1 at 38, 244; Ex. 7. Since the court
most construe all facts and inferences in the light most favorable to the nonmovant—Edwards—the
court finds that at this stage, Edwards has demonstrated that there is at least a genuine issue of
material fact regarding whether similarly situated employees were treated differently. Accordingly,
Edwards has met her burden to show a prima facie case.
Thus under McDonnell Douglas, the burden shifts to Chevron to articulate a legitimate
nondiscriminatory reason for terminating Edwards’s employment. Chevron has easily carried this
burden. Chevron routinely engages in many layers of reporting and counseling for all of its
employees. Dkt. 21, Ex. 2. Chevron argues and has adduced evidence to support the fact that
Edwards’s employment was terminated because she consistently underperformed in many areas
despite repeated counseling and opportunities to improve. Id. Therefore, Chevron has met its
burden.
The burden is now Edwards’s to demonstrate that the reasons given for terminating her
employment were merely pretext for discrimination.
To carry that burden, the plaintiff must produce substantial evidence of pretext:
“Evidence that the proffered reason is unworthy of credence must be enough to
support a reasonable inference that the proffered reason is false; a mere shadow of
doubt is insufficient.” [The Fifth Circuit] has consistently held that an employee's
“subjective belief of discrimination” alone is not sufficient to warrant judicial relief.
Auguster v. Vermilion Parish Sch. Bd., 249 F.3d 400, 402 (5th Cir. 2001) (quoting Bauer v.
Albemarle Corp., 169 F.3d 962, 967 (5th Cir.1999)). “Under the ADA, discrimination need not be
the sole reason for the adverse employment decision, [but] must actually play a role in the employer's
decision making process and have a determinative influence on the outcome.” Pinkerton v.
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Spellings, 529 F.3d 513, 519 (5th Cir. 2008). Thus Edwards need not show pretext for each of
Chevron’s reasons for terminating her employment. The record supports Chevron’s argument that
Edwards was in many ways a difficult employee in a team situation, but it also suggests that her
doctor visits were repeatedly an issue. See, e.g., Dkt. 21, Ex. 2, Tabs E, P. Accordingly, because
the court does not weigh evidence on summary judgment, the court holds that there is a genuine issue
of material fact regarding pretext precluding summary judgment on this issue.
3.
Accommodation
“Under the ADA, it is unlawful for an employer to fail to accommodate the known
limitations of an employee's disability.” Griffin v. United Parcel Serv., Inc., 661 F.3d 216, 224 (5th
Cir. 2011).
“An employee who needs an accommodation because of a disability has the
responsibility of informing her employer.” E.E.O.C. v. Chevron Phillips Chem. Co., 570 F.3d 606,
621 (5th Cir.2009). “The employee must explain that the adjustment in working conditions or duties
she is seeking is for a medical condition-related reason, but the employee does not have to mention
the ADA or use the phrase ‘reasonable accommodation.’” Id. “Plain English will suffice.” Id.
Chevron’s argument on this point is simple; it contends that Edwards never requested an
accommodation. In support of this argument, Chevron points to a section of Edwards’s deposition
testimony. Dkt. 21, Ex. 1 at 235. However, this section of Edwards’s deposition does not state that
she did not request an accommodation. Id. Rather, Edwards testified that she could not recall what
the accommodation request was. Id. In her response to the motion for summary judgment, Edwards
adduces an affidavit stating specifically that she did request an accommodation—to telecommute.
Dkt. 22, Ex. 2. Additionally, Edwards testified that she had spoken to her supervisors regarding the
severity of her condition. Dkt. 21, Ex. 1. And, if her supervisors were in any doubt that her IBS was
severe, certainly the fact that she had to take a 3 month medical leave to deal with a flare up should
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have alerted them. Therefore, the court holds that there is a genuine issue of material fact regarding
whether Edwards requested an accommodation precluding summary judgment.
CONCLUSION
Pending before the court is Chevron’s motion for summary judgment. For the reasons
described above, the motion is DENIED.
It is so ORDERED.
Signed at Houston, Texas on February 7, 2013.
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Gray H. Miller
United States District Judge
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