Sumpter v. The American Bottling Co et al
MEMORANDUM OPINION AND ORDER GRANTING 17 MOTION for Summary Judgment and Brief in Support. (Signed by Judge Gray H. Miller) Parties notified.(rkonieczny, 4)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
MICHAEL B. SUMPTER,
THE AMERICAN BOTTLING CO ., et al.,
CIVIL ACTION H-12-3444
MEMORANDUM OPINION & ORDER
Pending before the court is defendants, The American Bottling Co. and Dr. Pepper Snapple
Group, Inc.’s motion for summary judgment. Dkt. 17. After considering the motion, response,
reply, record evidence, and applicable law, the court is of the opinion that the motion should be
Defendant is a beverage company that manufactures and sells soft drinks and other beverages
around the world.1 Michael Sumpter was employed by defendant as a transport driver from June
1982 until his termination on January 10, 2011.2 As a transport driver, Sumpter was responsible for
transporting pallets of beverages to satellite warehouses, transporting empty bottles and cans to the
main warehouse, and delivering products to customers.3 Initially, Sumpter was scheduled to begin
work at 4:00 a.m. for each shift.4
Dkt. 17, Ex. 1, Declaration of Clarissa Webb (“Webb Decl.”) ¶3.
Id. at Ex. 3, Deposition of Michael Sumpter (“Sumpter Dep.”), pp. 10-11.
Id. at pp.16-18.
Id. at p. 45.
Defendant mandated that its drivers arrive to work on time to ensure timely delivery of its
products to its customers.5 In this regard, defendant implemented an attendance policy applicable
to all of its employees, which provided:
[Defendant] expect[s] our employees to be here 100% of the time. Your teammates
count on you to start your shift on time when you are scheduled to work. However,
we know that there are unplanned events that cause employees to miss work on an
exceptional basis. It is not the company’s intent to penalize employees who have
legitimate reasons to miss work. However, because of the disruption caused to the
business, [defendant] cannot afford to employ those employees who have patterns of
tardiness or absences.
You and your supervisor are responsible for tracking your attendance. If your
supervisor sees a pattern of tardiness or absences, you will be counseled and be given
a chance to correct the problem. If attendance continues to be an issue, then your
employment will be terminated, subject to federal and state employee leave laws.
Notify your supervisor as soon as possible, within two (2) hours of your shift start
time is preferable, if you will be tardy or have an unplanned absence. This will give
your supervisor time to plan for your absence.
If you have any questions about attendance standards, contact your supervisor or
Sumpter was provided a copy of this attendance policy and acknowledged his understanding of the
On April 1, 2009, Sumpter underwent a sleep study and was diagnosed with sleep apnea.8
He was prescribed a Bi-Level Positive Airway Pressure (“BIPAP”) machine in order to assist his
Id. at pp. 16-18.
Webb Decl., Ex. 1-A.
Sumpter Dep., pp. 18-23.
Id. at pp. 29-31.
breathing while sleeping.9 Sumpter contends that he was required to comply with Department of
Transportation (“DOT”) guidelines regarding the amount of continuous sleep on a BIPAP machine
that a transport driver should receive before driving.10 The DOT regulations require a driver with
sleep apnea to receive at least 4 hours of continuous sleep on a BIPAP machine in seventy percent
(70%) of the time prior to reporting for work.11 Sumpter had a difficult time adjusting to the use of
the BIPAP machine and used it on an inconsistent basis, causing him to be late for work in order to
meet the DOT guidelines.12
Sumpter maintains that his sleep apnea and use of the BIPAP machine were the causes of his
regular tardiness. However, Sumpter admitted that he was regularly late for work prior to his sleep
apnea diagnosis.13 Specifically, Sumpter agreed that “punctuality was a problem” prior to his
In March 2010, Sumpter was informed, as part of his annual performance appraisal, that his
tardiness was a problem.15 In April 2010, Christopher Ollison became Sumpter’s supervisor.16
Sumpter told Ollison about his sleep apnea and that he was having a difficult time arriving to work
Id. at p. 41.
Id. at pp. 44-45.
Id. at pp. 44, 47.
Id. at pp. 42-43, 138.
Id. at pp. 58-59.
Id. at p. 26.
Webb Decl. ¶8.
on time because of his BIPAP machine.17 Sumpter did not request a later start time from Ollison
because of this problem.18 Ollison responded that he was “pretty easy to work with,” but that he did
expect his transport drivers to report to work on time.19
Between April and June 2010, Sumpter admitted that he arrived late on 39 out of 47 work
shifts.20 Sumpter would arrive anywhere between 20 minutes to 4 hours late.21 During this period,
Sumpter never called Ollison to notify him that he was going to be late for work.22 On June 30,
2010, Ollison met with Sumpter to discuss his tardiness.23 Ollison proposed that Sumpter’s start
time be changed from 4:00 a.m. to 5:00 a.m.24 Sumpter agreed to change his start time.25 Ollison
reminded Sumpter that he was expected to be to work on time and was required to contact Ollison
if he was going to be late for work.26 Sumpter did not mention his sleep apnea condition or BIPAP
machine issues during this meeting.27
Sumpter Dep., pp. 64-66.
Dkt. 17, Ex. 2, Declaration of Christopher Ollison (“Ollison Decl.”) ¶6; Sumpter Dep., p. 65.
Id. at pp. 60-61.
Id. at pp. 60-62; Webb Decl., Ex. 1-C.
Sumpter Dep., p. 72; Ollison Decl. ¶7.
Sumpter Dep., pp. 66-67.
Id. at pp. 67-68.
Ollison Decl. ¶8.
Sumpter Dep., pp. 67-68.
Despite the later start time, Sumpter continued to arrive late for work. From July 2010 to
August 2010, Sumpter was late for work 30 times out of 35 shifts.28 On 27 of those times, he was
more than 30 minutes late.29 Further, Sumpter never called in to report his tardiness.30 On August
25, 2010, Ollison again met with Sumpter to counsel him regarding the company’s expectations and
Sumpter’s excessive tardiness.31 Ollison asked Sumpter what could be done to help him arrive to
work on time; however, Sumpter did not request an accommodation or inform Ollison that his
continued tardiness was due to his sleep apnea or BIPAP machine.32
Following this meeting with Ollison, Sumpter continued to arrive late for work. Between
September and November 2010, Sumpter was late 49 out of 54 shifts.33 On six of those occasions,
he was more than one hour late.34 On December 3, 2010, Ollison met once again with Sumpter
regarding his excessive tardiness.35 Sumpter did not cite his sleep apnea as the reason for his
tardiness and did not request a schedule change or other accommodation.36 At the conclusion of this
meeting, Ollison informed Sumpter if he was late again without explanation, then Sumpter’s
Id. at p. 70; Webb Decl. ¶10.
Sumpter Dep., p. 71.
Id. at p. 72.
Ollison Decl. ¶11.
Sumpter Dep., pp. 75-76.
Webb Decl. ¶12.
Sumpter Dep., pp. 79-80.
Id. at pp. 83-84.
employment would be terminated.37 Following this December meeting, Sumpter acknowledged he
was still late for work on 7 of 19 shifts, including over two hours late on one occasion.38 Further,
Sumpter admitted he never once called in to inform Ollison that he would be late.39
Human Resources also conducted an investigation into Sumpter’s excessive tardiness and
discovered that Sumpter was incorrectly recording his time on his time sheets.40 The investigation
found that the time entered automatically when Sumpter used his access badge to enter the facility
was often times later than the time actually recorded on his time sheets.41 Sumpter agreed that he
recorded an earlier time, based on his personal watch, because he did not want his time sheets to
reflect his late arrival.42 Sumpter’s conduct constituted falsification of time records and was grounds
for immediate termination under defendant’s employment policies.43
When Sumpter returned from the Christmas holidays in 2010, he learned that schedule
changes were being considered by management.44 Sumpter claims he intended to ask for a schedule
change at this time, but that he was unable to meet with Ollison from January 5 to January 7, 2011.45
During this period, Sumpter spoke with Ollison on three occasions about scheduling a meeting to
Id. at p. 80; Ollison Decl. ¶14.
Sumpter Dep., p. 87; Webb Decl. ¶14.
Sumpter Dep., p. 72.
Webb Decl. ¶17.
Sumpter Dep., pp. 89-90, 94-95.
Webb Decl. ¶17.
Sumpter Dep., p. 96.
Id. at p. 95-104.
discuss the schedule change, but Sumpter never actually asked for a schedule change.46 On January
10, 2011, Sumpter met with Ollison and Clarissa Webb, the Human Resources Manager, who
terminated his employment as a result of repeated tardiness, failure to call in late to his supervisor,
and falsification of time records.47 Sumpter never requested an accommodation from Human
Resources for his sleep apnea.48
Following his termination, Sumpter filed an EEOC charge of discrimination against
defendants, claiming disability discrimination and failure to accommodate. Sumpter received a right
to sue letter, and subsequently filed this lawsuit against American Bottling Co. and Dr. Pepper
Snapple Group, Inc. for violations of the Americans with Disabilities Act, disability discrimination,
and intentional infliction of emotional distress.
Defendants now move for summary judgment, arguing that Sumpter’s claims fail as a matter
of law. Specifically, defendants assert that Sumpter was not a “qualified individual” who could
perform the essential functions of his job with or without reasonable accommodation, that he did not
request a reasonable accommodation, that no reasonable accommodation would have allowed
Sumpter to perform the essential functions of his job, and that defendant terminated Sumpter because
of his repeated tardiness, failure to call in late for work, and falsification of time records. In response
to defendants’ motion for summary judgment, Sumpter does not dispute that American Bottling Co.
is not his employer, and he has abandoned his claim for intentional infliction of emotional distress.
Id. at pp. 90-91.
Id. at p. 95.
Dkt. 20. Therefore, the court will only address Sumpter’s disability discrimination and failure to
accommodate claims against Dr. Pepper Snapple Group, Inc..
II. LEGAL 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 judgment as a matter of law.” FED . R. CIV . P. 56(a);
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 evidence, if any, that demonstrates the absence of a genuine
dispute 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 dispute of material fact. Id. at 322. 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).
A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505
(1986); Cooper Tire & Rubber Co. v. Farese, 423 F.3d 446, 454 (5th Cir. 2005). A dispute is
“material” if its resolution could affect the outcome of the action. Anderson, 477 U.S. at 248. The
substantive law determines the facts which are material in each case. Lastly, in determining whether
a genuine dispute of material fact exists, the court views the evidence and draws inferences in the
light most favorable to the nonmoving party. Id. at 255; Richardson v. Monitronics Int’l, Inc., 434
F.3d 327, 332 (5th Cir. 2005).
The Americans with Disabilities Act (“ADA”) provides that no employer shall discriminate
against a qualified individual on the basis of disability in regard to “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). Sumpter has also plead a cause of action for
disability discrimination under the Texas Commission on Human Rights Act (“TCHRA”), which
prohibits employment discrimination on the basis of “race, color, disability, religion, sex, national
origin, or age . . ..” TEX . LAB. CODE § 21.051. “[T]he TCHRA is interpreted “in a manner consistent
with federal laws prohibiting employment discrimination.” Martin v. Kroger Co., 65 F. Supp. 2d
516, 530 (S.D. Tex. 1999) (citing Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 492
(Tex. 1996)); Rodriguez v. ConAgra Grocery Prods. Co., 436 F.3d 468, 474 (5th Cir. 2006)
(analyzing a TCHRA claim under ADA case law). Therefore, the court’s analysis pertaining to
Sumpter’s ADA claims will apply equally to his discrimination claims under the TCHRA.
When a plaintiff asserts an ADA discrimination claim involving an adverse employment
action and has no direct evidence of discrimination, the court uses the burden-shifting framework
set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). E.E.O.C. v.
Chevron Phillips Chem. Co., L.P., 570 F.3d 606, 615 (5th Cir. 2009). Under this framework, the
plaintiff must first establish a prima facie case of discrimination by showing that: (1) he suffered
from a disability or was regarded as disabled; (2) he was qualified for the job that he held; (3) he was
subjected to an adverse employment action on account of his disability; and (4) he was replaced by
a non-disabled person or was treated less favorably than non-disabled employees. Id. If the plaintiff
successfully establishes a prima facie case, 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. Daigle v.
Liberty Life Ins. Co., 70 F.3d 394, 396 (5th Cir. 1995).
Even assuming that Sumpter was able to establish the first three elements of his prima facie
case, Sumpter has failed to meet his burden on the fourth element. Sumpter must establish a genuine
dispute of material fact regarding whether he was treated less favorably than similarly situated
employees outside of the protected class. Lee v. Kansas City S. Ry., 574 F.3d 253, 259 (5th Cir.
2009); Aldrup v. Caldera, 274 F.3d 282, 286 (5th Cir. 2001). In order to do so, he must show that
“employees who were not members of the plaintiff’s protected class were treated differently under
circumstances nearly identical to his.” Turner v. Kansas City S. Ry. Co., 675 F.3d 887, 893 (5th Cir.
2012) (internal quotations omitted); Aldrup, 274 F.3d at 287 n.23 (in disparate treatment claim, the
employees must be in “nearly identical circumstances”) (citing Mayberry v. Vought Aircraft Co., 55
F.3d 1086, 1090 (5th Cir. 1995)). Employees with different responsibilities, supervisors, or
disciplinary records are not considered to be nearly identical. Lee, 574 F.3d at 260. No presumption
of discrimination is raised by plaintiff’s prima facie case if legitimate substantive differences
between the plaintiff and proffered comparator explain the disparate treatment. Wallace v. Methodist
Hosp. Sys., 271 F.3d 212, 221 (5th Cir. 2001).
Sumpter has failed to offer any competent evidence49 establishing that he was replaced by
or treated less favorably than a non-disabled person. In his response to defendants’ motion for
summary judgment on this element of his claim, Sumpter states: “Sumpter’s schedule could have
been easily moved without disruption to Defendants’ business.” Dkt. 20, p. 10. Sumpter offers no
other evidence or argument to address the fourth element of his claim. A plaintiff's failure to
establish a genuine issue of material fact on any of the essential elements of his claim entitles
defendant to summary judgment. Blanks v. Sw. Bell Communications, Inc., 310 F.3d 398, 410 (5th
Even if the court were to consider the unsubstantiated evidence offered by Sumpter in his
EEOC Charge, there is still an insufficient factual basis to conduct a meaningful analysis regarding
whether the proffered comparators were situated in nearly identical circumstances to Sumpter, in
terms of their supervisors, disciplinary records, or the contexts in which schedule changes were
permitted. Lee, 574 F.3d at 259-60 (requiring more than a superficial analysis when determining if
the comparator’s circumstances are nearly identical to those of plaintiff). Additionally, Sumpter’s
allegations in his EEOC Charge do not demonstrate that he was treated less favorably than other nondisabled drivers because he was given a later start time–just like the other drivers. For failing to
The only evidence that Sumpter seeks to introduce is his Equal Employment Opportunity
Commission charge of discrimination (“EEOC Charge”). Defendants move to strike the EEOC Charge as
incompetent summary judgment evidence. Dkt. 21, p. 4. Evidence that would not be admissible at trial is
not competent evidence to be considered during summary judgment. Duplantis v. Shell Offshore, Inc., 948
F.2d 187, 192 (5th Cir. 1991). The court agrees that the contents of the EEOC Charge upon which Sumpter
relies are incompetent summary judgment evidence. First, the statements made in the EEOC Charge relating
to the schedules and tardiness of other employees are inadmissible hearsay—out-of-court statements that
Sumpter seeks to rely on to show the truth of the matter asserted. See FED . R. EVID . 801(c). Further, the
statements Sumpter offers are unsworn, unauthenticated, unsupported by an affidavit, and otherwise
unverified. Thus, the EEOC Charge submitted by Sumpter as Exhibit A to his response to defendants’
motion for summary judgment is stricken.
show a material dispute on this element of his prima facie case, the court could grant defendants’
motion for summary judgment on Sumpter’s disability discrimination claim. Johnson v. Parkwood
Behavioral Health Sys., 551 F. App’x 753, 756 (affirming summary judgment on disability
discrimination claim because plaintiff did not present any evidence that she was replaced by a nondisabled person or treated less favorably than a non-disabled employee).
Even assuming, however, that Sumpter established his prima facie case, he has failed to raise
a genuine issue of material fact that defendant’s legitimate, nondiscriminatory reasons for his
termination were a pretext for discrimination. A plaintiff can establish pretext either through
evidence of disparate treatment or by showing that the employer’s proffered explanation is false or
unworthy of credence. Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003). Further, a plaintiff
“must put forward evidence rebutting each of the nondiscriminatory reasons the employer
articulates” in order to establish pretext. Wallace, 271 F.3d at 220.
Defendants have offered extensive summary judgment evidence that Sumpter was terminated
for repeated tardiness, failure to notify his supervisor when he was going to be late, and falsification
of time records. Sumpter, on the other hand, has not offered substantial evidence indicating that
defendant’s proffered legitimate, nondiscriminatory reasons are a pretext for discrimination. Laxton,
333 F.3d at 578 (to show pretext, “the plaintiff must produce substantial evidence indicating that the
proffered legitimate nondiscriminatory reason is a pretext for discrimination”). As previously noted,
Sumpter has not established any disparate treatment because his schedule was changed like the other
drivers. Further, Sumpter has not shown that defendants’ proffered reasons are false. In fact,
Sumpter admits that he committed each of the policy violations cited by defendants. Specifically,
Sumpter was consistently late, despite numerous warnings and being given a later start time.50
Sumpter also admitted that he never once called Ollison to report that he would be late for work.51
And, he purposefully documented his time incorrectly on his time sheets to avoid the appearance of
being late.52 Other than his own subjective belief that discriminatory animus led to his termination,
Sumpter has failed to present summary judgment evidence from which a reasonable juror could draw
the inference that defendant’s grounds for termination were a pretext for disability discrimination.
Price v. Marathon Cheese Corp., 119 F.3d 330, 337 (5th Cir. 1997) (to establish pretext, a plaintiff
cannot solely rely on his subjective belief that discrimination has occurred). Thus, Sumpter’s
disability discrimination claim fails as a matter of law.
Failure to Accommodate
Under the ADA, an employer must provide “reasonable accommodations to the known
physical or mental limitations of an otherwise qualified individual with a disability . . ..” 42 U.S.C.
§ 12112(b)(5)(A). A “qualified individual” is one “who, with or without reasonable accommodation,
can perform the essential functions of the employment position . . ..” Id. at § 12111(8). Defendants
have shown, as a matter of law, that Sumpter could not perform an essential function of his job with
or without an accommodation. It is legally and factually undisputed that arriving on time was an
essential function of Sumpter’s job. See Dkt. 20, p. 9; Hypes v. First Commerce Corp., 134 F.3d
721, 727 (5th Cir. 1998) (“[C]ourts are in agreement that regular attendance is an essential function
of most jobs.”). The record reveals that Sumpter could not arrive on time without a reasonable
Webb Decl. ¶¶ 9-16; Ollison Decl. ¶¶7-16.
Sumpter Dep., p. 72.
Id. at pp. 89-90.
accommodation. Sumpter’s persistent tardiness occurred prior to his sleep apnea diagnosis.53
Further, the evidence shows that he was also unable to arrive to work on time, even with a reasonable
accommodation. As proposed by his supervisor, Sumpter’s start time was pushed back by one hour
to 5:00 a.m. in order to address his untimeliness. This unsolicited accommodation proved to be
unworkable for Sumpter because he was still routinely late by an hour or more.54 Although Sumpter
now contends that an even later start time would have resolved the situation, the evidence does not
support such a conclusion because he did not request a later start time and he was still frequently late
despite being given an extra hour. Therefore, the present record establishes that with or without a
reasonable accommodation, Sumpter was unable to perform an essential function of his job.
Additionally, Sumpter did not request an accommodation. The employer’s obligation to
provide a reasonable accommodation is triggered by the employee’s request for such an
accommodation. Taylor v. Principal Fin. Group, 93 F.3d 155, 165 (5th Cir. 1996); E.E.O.C. v.
Chevron Phillips Chem. Co., L.P., 570 F.3d 606, 621 (5th Cir. 2009) (An employee is required to
notify his employer of his disability and request a reasonable accommodation.). The employee does
not have to mention the ADA or use magic words like ‘reasonable accommodation,’ but he must
explain that the adjustment in working conditions or duties he is seeking is for a medical
condition-related reason. Id. Here, although Sumpter informed his supervisor of his sleep apnea
condition, he never requested an accommodation, despite multiple opportunities to do so.55 During
Id. at pp. 58-59.
Webb Decl. ¶¶10-14 (citing over 15 instances where Sumpter was an hour or more late following
his schedule change); Sumpter Dep., pp. 71, 79.
Id. at pp. 106-07, 116-17 (Sumpter requested a meeting with Ollison on three separate occasions
without expressly asking for a schedule change.); id. at pp. 67, 75-76, 83-84 (Ollison counseled Sumpter
regarding his excessive tardiness on three separate occasions in June, August, and December 2010.).
several counseling sessions regarding Sumpter’s continued tardiness, Sumpter failed to mention his
condition or request a change in his schedule.56 Sumpter claims that he intended to ask for a
schedule change during the meeting where he was terminated. His intention to request a schedule
change, however, was too little, too late. Sumpter had already been admonished on four separate
occasions about his tardiness and the requirement that he call his supervisor if he was going to be
late.57 He had also been told by his supervisor that if he failed to arrive to work on time, he would
be subject to termination.58
Thus, by the time Sumpter claims he intended to request an
accommodation, his termination was already a foregone conclusion. Because Sumpter did not
request an accommodation as required to trigger his employer’s responsibility to provide a
reasonable accommodation, his failure to accommodate claim fails.
Ollison Decl. ¶14.
For the reasons stated herein, the court concludes that no genuine issue of material fact exists
regarding Sumpter’s claims for disability discrimination or failure to accommodate under the ADA
or the TCHRA. Sumpter has abandoned his claims against American Bottling Co. and his claim for
intentional infliction of emotional distress. Therefore, defendants are entitled to judgment as a
matter of law on all of Sumpter’s claims. Accordingly, the court grants defendants, American
Bottling Co. and Dr. Pepper Snapple Group, Inc.’s motion for summary judgment (Dkt. 17) and
dismisses this action with prejudice. A separate final judgment will be issued in accordance with
It is so ORDERED.
Signed at Houston, Texas on November 13, 2014.
Gray H. Miller
United States District Judge
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