Bleiweiss v. Panduit Sales Corporation

Filing 20

ORDER granting 15 Motion for Summary Judgment.(Signed by Judge Melinda Harmon) Parties notified.(rhawkins, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
FREDDIE BLEIWEISS,

§
§
§
§
§
§
§
§
§

Plaintiff,
VS.
PANDUIT SALES CORP.,
Defendant.

CIV. ACTION NO. H-13-0080

OPINION AND ORDER OF SUMMARY JUDGMENT
Pending before the Court in the above referenced cause,
removed from state court on diversity jurisdiction and alleging
discriminatory

termination

of

employment

based

on

age

and

disability, in violation of § 21.051 of the Texas Labor Code,

1

during a business reorganization is Defendant Panduit Sales
Corp.’s (“Panduit’s”) motion for summary judgment (instrument
#15).
After a careful review of the record and the applicable
law,

for

the

reasons

stated

below

the

Court

concludes

that

Plaintiff Freddie Bleiweiss has failed to meet his burden of proof
and that Panduit’s motion should be granted.
Standard of Review
Summary judgment under Federal Rule of Civil Procedure
56(c) is appropriate when, viewing the evidence in the light most

1

The popular name for Chapter 21 of the Texas Labor
Code is the Texas Commission on Human Rights Act or TCHRA. Texas
abolished the Texas Commission on Human Rights in March 2004 and
transferred its duties to the Texas Work Commission. Although the
Texas Supreme Court stated it would not use the earlier name, the
popular name is still used by many courts. Little v. Texas Dept.
of Criminal Justice, 148 S.W. 3d 374, 377-78 (Tex. 2004); ATI
Enterprises, Inc. v. Din, 413 S.W. 3d 247, 249 n.3 (Tex. App.-Dallas Oct. 23, 2013).

favorable

to

the

nonmovant,

the

court

determines

that

“the

pleadings, depositions, answers to interrogatories and admissions
on file, together with the affidavits, show that there is no
genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.”

A dispute of material

fact is “genuine” if the evidence would allow a reasonable jury to
find in favor of the nonmovant. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
Initially the movant bears the burden of identifying
those portions of the pleadings and discovery in the record that
it finds demonstrate the absence of a genuine issue of material
fact on which the nonmovant bears the burden of proof at trial; a
“complete failure of proof concerning an essential element of the
nonmoving

party’s

immaterial.”

case

necessarily

renders

all

other

facts

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);

Lujan v. National Wildlife Federation, 497 U.S. 871, 885 (1990);
Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998).
If the movant meets its burden and points out an absence
of evidence to prove an essential element of the nonmovant’s case
on which the nonmovant bears the burden of proof at trial, the
nonmovant must then present competent summary judgment evidence to
support the essential elements of its claim and to demonstrate
that there is a genuine issue of material fact for trial.
National Ass’n of Gov’t Employees v. City Pub. Serv. Board, 40
F.3d 698, 712 (5th Cir. 1994).

“[A] complete failure of proof

concerning an essential element of the nonmoving party’s case

-2-

renders all other facts immaterial.”

Celotex, 477 U.S. at 323.

The nonmovant may not rely merely on allegations, denials in a
pleading or unsubstantiated assertions that a fact issue exists,
but must set forth specific facts showing the existence of a
genuine issue of material fact concerning every element of its
cause(s) of action.

Morris v. Covan World Wide Moving, Inc,, 144

F.3d 377, 380 (5th Cir. 1998).
The court must consider all evidence and draw all
inferences from the factual record in the light most favorable to
the nonmovant.

Matsushita Elec. Indus. Co. v. Zenith Radio, 475

U.S. 574, 587 (1986); National Ass’n of Gov’t Employees v. City
Pub. Serv. Board, 40 F.3d at 712-13.
Conclusory allegations unsupported by evidence will not
preclude summary judgment.

National Ass’n of Gov’t Employees v.

City Pub. Serv. Board, 40 F.3d at 713; Eason v. Thaler, 73 F.3d
1322, 1325 (5th Cir. 1996). “‘[T]he mere existence of some alleged
factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment . . . .’”

State

Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990),
quoting Anderson v. Liberty Lobby, Inc.. 477 U.S. 242, 247-48
(1986).

“Nor is the ‘mere scintilla of evidence’ sufficient;

‘there must be evidence on which the jury could reasonably find
for the plaintiff.’” Id., quoting Liberty Lobby, 477 U.S. at 252.
The Fifth Circuit requires the nonmovant to submit “‘significant
probative evidence.’” Id., quoting In re Municipal Bond Reporting
Antitrust Litig., 672 F.2d 436, 440 (5th Cir. 1978), and citing

-3-

Fischbach & Moore, Inc. v. Cajun Electric Power Co-Op., 799 F.2d
194, 197 (5th Cir. 1986).

“If the evidence is merely colorable,

or

probative,

is

not

significantly

summary

judgment

may

be

Thomas v. Barton Lodge II, Ltd., 174 F.3d 636, 644 (5th

granted.”

Cir. 1999), citing Celotex, 477 U.S.

at 322, and Liberty Lobby,

477 U.S. at 249-50.
Allegations in a plaintiff’s complaint are not evidence.
Wallace

v.

Texas

Tech

Univ.,

80

F.3d

1042,

1047

(5th

Cir.

1996)(“[P]leadings are not summary judgment evidence.”); Johnston
v. City of Houston, Tex., 14 F.3d 1056, 1060 (5th Cir. 1995)(for
the

party

opposing

the

motion

for

summary

judgment,

“only

evidence-–not argument, not facts in the complaint--will satisfy’
the burden.”), citing Solo Serve Corp. v. Westown Assoc., 929 F.2d
160, 164 (5th Cir. 1991).
Factual Allegations of Plaintiff’s Original Petition (#1-3)
Panduit employed Plaintiff for five years and nine
months as a System Sales Engineer until he was terminated on
September 30, 2011 while Panduit was undergoing a reorganization
or reduction in force (“RIF”).

In April 2011, Thomas Kean

(“Kean”), a new Director of Sales hired from outside the company,
announced a reorganization of the group of ten Sales Engineers,
but represented that all their jobs would be safe.

Nevertheless,

Plaintiff and the only other Sales Engineer over the age of fifty,
Michael Newman, were laid off.

Furthermore, within a few weeks of

Plaintiff’s discharge, Panduit advertised for his position under
a different title.

-4-

Plaintiff claims that Panduit knew that Plaintiff was
being treated by a neurosurgeon for a problem with his back and
hip.

When Panduit switched the kind of company vehicles it

provided to some employees from Trail Blazer SUVs to Ford Taurus
sedans, the neurosurgeon wrote a letter2 to Panduit recommending
that Plaintiff be allowed to keep his Trail Blazer to accommodate
Plaintiff’s
Instead,

disability

Panduit

took

because it provided easier access.
away

the

Taurus,

but

refused

Plaintiff a different vehicle or a car allowance.

3

to

give

Plaintiff

claims that later Kean was “uncomfortable for Plaintiff’s need to
rent a small sport utility vehicle when travelling and . . . with
the

fact

that

Plaintiff

walked

with

a

limp

secondary

to

degenerative disk disease, since found out Plaintiff also has
degenerative hips. [sic]”

2

#1-3 at ¶ 5.3.

A copy is attached to #17, Ex. F.

3

The Court observes that Plaintiff, who is represented
by counsel, has not specified a cause of action under the TCHRA
for discriminatory failure to make reasonable accommodation for a
known disability, nor has either party addressed such a claim.
See, e.g., Feist v. La. Dep’t of Justice, Office of the Att’y
Gen., 730 F.3d 450, 452 (5th Cir. 2012). “A wrongful termination
claim under the ADA is not properly analyzed under a reasonable
accommodation theory unless an employer is shown to have
terminated a qualified individual with a disability in order to
avoid accommodating that employee’s impairments at the workplace.”
Burch v. Coca-Cola Co., 119 F.3d 305, 314 (5th Cir. 1997). The
issue of the company car arose more than a year before Plaintiff’s
termination and, as will be discussed, he ultimately accepted an
alternate accommodation by Panduit of his claimed disability.
Moreover at his deposition when Plaintiff was asked whether around
the time of his layoff in August or September of 2011 his back
condition limited his ability to perform the sales engineering
position, he responded, “Not one bit.” #17, Ex. A, at p.128:9-17.
-5-

While Plaintiff and Kean traveled through Iowa and
Nebraska on a business trip to visit customers, Kean commented on
what he perceived to be a disability of Plaintiff, i.e., the way
Plaintiff was moving and bending, and Kean repeatedly stated that
he ran for exercise.
still able to run.

Plaintiff responded that he wished he was

Plaintiff further felt compelled to tell Kean

that one day Plaintiff would have surgery to relieve his problem.
#17, Bleiweiss Affid., Ex. C.

Another time Kean told Plaintiff to

“back off the disability thing” because it was affecting his work.
Id.
Plaintiff conclusorily asserts that age and disability
were motivating factors in Panduit’s decision to terminate him and
that Panduit violated the Americans with Disabilities Act and the
Age Discrimination in Employment Act.4
4

Plaintiff filed this Petition when he initiated this
case in Texas state court. Texas pleading standards are far more
lenient than federal pleading standards. “Texas follows a ‘fair
notice’ pleading standard, which looks to whether the opposing
party can ascertain from the pleading the nature and basic issues
of the controversy and what testimony will be relevant at trial.”
Penley v. C.L. Westbrook, 146 S.W. 3d 220, 232 (Tex. App.-–Fort
Worth 2004)(citing Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.
3d 887, 896 (Tex. 2000)), [rev’d on other grounds, 231 S.W. 3d 389
(Tex. 2007)].
As summarized
in 1 Tex. Prac. Guide
Civil
Pretrial § 5:39 (Database updated through September 2010):
A petition is sufficiently pleaded if
one can reasonably infer a cause of action or
defense from what is specifically stated.
Boyles v. Kerr, 855 S.W. 2d 593, 601 (Tex.
1993); In re Credit Suisse First Boston
Mortgage Capital, LLC, 273 S.W. 3d 843, 850
(Tex. App.-–Houston [14th Dist.] 2008, orig.
proceeding)(petition can be sufficient if a
claim reasonably may be inferred from what is
specifically stated, and thus, a petition is
-6-

Applicable Law
The Texas Commission on Human Rights Act ("TCHRA"),
Section 21.051 of the Texas Labor Code, provides in relevant part,
"An employer commits an unlawful employment practice if because of
race, color, disability, religion, sex, national origin or age the
employer . . . discharges an individual, or discriminates in any
other manner against an individual in connection with compensation
or the terms, conditions, or privileges of employment . . . ."
Although Plaintiff’s Original Petition states that he “does not
assert any federal claims in this proceeding” (#1-3 at p.4), not
only does his Original Petition (#1-3 at ¶ 5.5) state otherwise,
but the Texas Legislature “intended to correlate state law with
federal law in employment discrimination when it enacted the

not necessarily defective even if the
plaintiff has not specifically alleged one of
the elements of a claim). . . . Woolam v.
Tussing, 54 S.W. 3d 442. 448 (Tex. App.-Corpus Christi 2001, no pet.)(pleadings will
generally be construed as favorably as
possible to the pleader; the court will look
to the pleader’s intendment and the pleading
will be upheld even if some element of a
cause of action has not been specifically
alleged, and every fact will be supplied that
can reasonably be inferred from what is
specifically stated) . . . .
See also 58 Tex. Jur. 3d Pleading § 102 (Database updated October
2010)(“In the absence of a special exception, a pleading will be
construed liberally in the pleader’s favor, and every reasonable
intendment will be indulged in favor of the pleading. The court
will seek to discover the intendment of the pleader; and the
pleading may be upheld even if some element of the cause of action
or defense has not been specifically alleged. Every fact will be
supplied that may reasonably be inferred or regarded as being
implied by what is specifically stated.”)(footnote citations
omitted).
-7-

TCHRA.”

Wal-Mart Stores, Inc. v. Canchola, 121 S.W. 3d 735, 739

(Tex. 2003).

Moreover, “[i]n discrimination cases that have not

been fully tried on the merits, [Texas courts] apply the burdenshifting analysis established by the United States Supreme Court.”
Id., citing Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.
133, 142-43 (2000), and McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973).

See also Gold v. Exxon Corp., 960 S.W.2d 378, 380

(Tex. App.--Houston [14th Dist.] 1998, no writ)(In enacting the
TCHRA, the Texas Legislature intended to correlate "state law with
federal law in the area of discrimination in employment"; thus the
same burden-shifting framework used to analyze a case under the
federal discrimination statutes applies under the Texas statute.).
TCHRA and the Age Discrimination in Employment Act (“ADEA”),
29 U.S.C. §§ 621-634
The ADEA makes it “unlawful for an employer to fail or
refuse to hire or to discharge or otherwise discriminate against
any

individual

conditions,

or

with

respect

privileges

individual’s age.”

to

of

his

compensation,

employment,

because

terms,
of

such

19 U.S.C. § 623(a)(1).

Regarding age discrimination, the TCHRA is coextensive
with the ADEA and claims are evaluated in the same analytic
framework under both statutes. Evans v. City of Houston, 246 F.3d
344, (5th Cir. 2001), citing

Bodenheimer v. PPG Indus. Inc., 5

F.3d 955, 957 (5th Cir. 1993); In re United Servs. Auto. Ass’n, 307
S.W. 3d 299, 308 (Tex. 2010).

See also Murphy v. Uncle Ben’s,

Inc., 168 F.3d 734, 739 (5th Cir. 1999)(“The purpose of the [TCHRA]

-8-

is to coordinate and conform with federal law under Title VII and
the ADEA,” so the courts look to federal precedent in the absence
of state decisional law), citing Caballero v. Cent. Power & Light
Co.,

858

S.W.

2d

359,

361

(Tex.

1993).

Because an RIF is a “legitimate, nondiscriminatory
reason for discharge, the Fifth Circuit has modified the McDonnell
Douglas framework of discrimination cases in such a context.
Smith v. Houston Indep. Sch. Dist., No. 4:12-CV-3083, 2014 WL
4471386, at *4 (S.D. Tex. Sept. 9, 2014), citing EEOC v. Tex.
Instruments, Inc., 100 F.3d 1173, 1181 (5th Cir. 1996), and Russo
v. Smith Int’l, Inc., 93 S.W. 3d 428, 438 (Tex. App.--Houston [14th
Dist.] 2002).

In the context of an RIF a plaintiff cannot prove

that he was replaced by a younger employee, the prima facie case
of age discrimination does not require that he show such.
Amburgey v. Corhart Refractories Corp., 936 F.2d 805, 812 (5th Cir.
1991).

The plaintiff can establish a prima facie case in an RIF

case by a minimal showing (1) that she is within a protected
group, (2) that she was adversely affected by the employer’s
decision, (3) that she was qualified to assume another position,
and (4) others who were not members of the protected class
remained in similar positions. Smith v. Houston Indep. Sch. Dist.,
2014 WL 4471386, at *4.

See also Amburgey, 936 F.2d at 812 (for

a prima facie case in a reduction case the plaintiff must show
that he is in the protected age group, that he was adversely
affected, i.e., discharged or demoted, by the employer’s decision,
that he was qualified to assume another position at the of his

-9-

discharge or demotion, and that there is sufficient evidence from
which the factfinder might reasonably conclude that the employer
intended to discriminate in reaching its decision by either (1)
refusing to consider retaining or relocating the plaintiff because
of his age

or (2) regarding age as a negative factor in its

consideration). The Fifth Circuit finds suspicious in a RIF case
when

without

a

plausible

explanation

an

employer

fires

a

qualified, older employee, but retains younger ones. Id. at 812.
Under both statutes a plaintiff may prove a claim of age
discrimination with either direct or circumstantial evidence.
Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 377 (5th Cir.
2010); Quantum Chem. Corp. v. Toennies, 47 S.W. 3d 473, 476 (Tex.
2001).

If a plaintiff provides direct evidence of discriminatory

animus (as the “but-for” factor under the ADEA and as a motivating
factor under the TCHRA) in the employment decision, the burden
shifts to the defendant to prove that “‘it would have taken the
same action, regardless of discriminatory animus.’”
Apple, Inc.,

F.3d

Maestas v.

, 2013 WL 5385478, at *3 (5th Cir. Sept.

27, 2013), citing Sandstad v. CB Richard Ellis, Inc., 309 F.3d
893, 896 (5th Cir. 2002), citing Price Waterhouse v. Hopkins, 490
U.S. 228, 252-53 (1989); Quantum Chem, 47 S.W. 3d at 476 (If the
plaintiff submits direct evidence of discriminatory animus, the
burden shifts to the employer to show that “legitimate reasons
would

have

led

to

the

same

decision

regardless

of

any

discriminatory motives.”). “‘Direct evidence is evidence that, if
believed,

proves

the

fact

of

discriminatory

- 10 -

animus

without

inference or presumption.’”

West v. Nabors Drilling USA, Inc.,

330 F.3d 379, 384 n.3 (5th Cir. 2003)(quoting Sanstad v. CB Richard
Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002), cert. denied, 539
U.S. 926 (2003). “[D]irect evidence includes any statement or
document which shows on its face that an improper criterion served
as” “the,” or “a,” basis (depending upon the statute) for the
adverse employment action.

Fabela v. Socorro Indep. Sch. Dist.,

329 F.3d 409, 415 (5th Cir. 2003), overturned on other grounds by
Smith v. Xerox Corp., 602 F.3d 320, 328 (5th Cir. 2010).

Remarks

“relat[ing] to the protected class of persons of which the
plaintiff is a member,” near in time to the plaintiff’s allegedly
discriminatory termination, “made by an individual with authority”
over that decision, and related to that decision may constitute
direct evidence of discrimination. Jackson v. Cal-Western Packing
Corp., 602 F.3d 374, 380 (5th Cir. 2010).

“In order for an age-

based comment to be probative of an employer’s discriminatory
intent, it must be direct and unambiguous, allowing a reasonable
jury to conclude without any inferences or presumptions that age
was a determinative factor in deciding to terminate the employee.”
Wyvill v. United Companies Life Ins. Co., 212 F.3d 296, 304 (5th
Cir. 2000).
Where

there

is

no

direct

evidence

of

age

discrimination, the McDonnell Douglas evidentiary procedure for
allocating burdens of proof applies to discrimination claims under
the ADEA and the TCHRA.
77, 83 (5th Cir. 1995).

Meinecke v. H&R Block of Houston, 66 F.3d
“If an inference is required for the

- 11 -

evidence

to

be

probative

as

to

discriminatory

animus

in

terminating [the employee], the evidence is circumstantial.”
Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897-98 (5th Cir.
2001).

Comments may also be used as circumstantial evidence of

employment discrimination where made by a person who is either
primarily responsible for the challenged employment action or who
has influence over that decision.

Matthews v. United Brotherhood

of Carpenters & Joiners of Am., 228 Fed. Appx. 436, 440 (5th Cir.
Apr. 18, 2007), citing Palasota v. Haggar Clothing Co., 342 F.3d
569, 578 (5th Cir. 2003).

If the comments are vague and remote in

time or the speaker has no authority or influence over the adverse
employment decision, they are merely stray remarks insufficient to
establish discrimination.

Brown v. CSC Logic, Inc., 82 F.3d 651,

655 (5th Cir. 1996).
In a suit for age discrimination, the plaintiff must
first establish a

prima facie

case of discrimination:

the

plaintiff must show that (1) he was discharged; (2) he was
qualified for the position; (3) he was within a protected class
(at least forty years of age, 29 U.S.C. § 631(a)) at the time of
the discharge; and (4) he was either replaced by someone younger,
or otherwise discharged because of his age.
at 957.

Bodenheimer, 5 F.3d

See also Nichols v. Loral Vought Sys. Corp., 81 F.3d 39,

41 (5th Cir. 1996)(In a reduction-in-force case grounded in the
ADEA,

a

plaintiff

must

establish

a

prim

facie

case

of

age

discrimination by showing “(1) that he is within the protected age
group; (2) that he has been adversely affected by the employer’s

- 12 -

decision; (3) that he was qualified to assume another position at
the time of the discharge; and (4) ‘evidence, circumstantial or
direct, from which a factfinder might reasonably conclude that the
employer intended to discriminate in reaching the decision at
issue.’”).
The TCHRA does differ from the ADEA in the causation
standard:

the ADEA requires evidence that age was the “but-for”

cause of the adverse action, while the TCHRA applies a less strict
standard, i.e., that age was a “motivating factor” in the adverse
decision.

Julian v. City of Houston, No. 4:12-CV-2973, 2014 WL

3795580, at *4 (S.D. Tex. July 31, 2014), citing Quantum Chem, 47
S.W. 3d at 480; Agoh v. Hyatt Corp., 992 F. Supp. 2d 722, 737-38
(S.D. Tex. 2014)(The “‘motivating factor’ analysis’ does not apply
to the ADEA.”), citing Smith v. Xerox, 602 F.3d 320 (5th Cir.
2010).
While only those forty years or older are protected by
the ADEA, the statute prohibits age discrimination against them
not on the basis of class membership, but on age.

O'Connor v.

Consolidated Caterers Corp., 517 U.S. 308, 313 (1996)(holding that
an

inference

that

the

employment

action

was

based

on

a

discriminatory motive cannot be drawn where one worker is replaced
by another who is not significantly younger but outside the
protected class; instead the person replacing the plaintiff must
be “substantially younger.”).

Thus if one member of the class

loses out to another member of the class, that fact is irrelevant
as long as the first lost out because of his age.

- 13 -

Id.

Nor is

there a greater inference of age discrimination when a forty-yearold loses out to a thirty-nine-year-old than when a fifty-sixyear-old loses out to a forty-year old.

Id.

Instead the court

looks at a more reliable indicator, i.e., whether the plaintiff
was "substantially" older than the replacement employee.

Id.

Courts have held that a five-year difference between an employee
and his replacement is insufficient as a matter of law to create
an inference of discrimination.

Cramer v. Intelidata Techs.

Corp., No. 97-2775, 1998 WL 911735, at *3 (4th Cir. Dec. 31,
1998); Bush v. Dictaphone Corp., 161 F.3d 363, 368 (6th Cir.
1998).
The Fifth Circuit has held that a plaintiff’s subjective
belief that he was discriminated against is insufficient to
establish a prima facie case of discrimination under Title VII,
the TCHRA, or the ADEA.

Vasquez v. Nueces County, Texas, 551 Fed.

Appx. 91, 94 (5th Cir. Dec. 19, 2013)(“The only evidence offered
to support her complaint is her own affidavit asserting that the
motivation for her termination was her age, gender, national
origin or race.”), citing Baltazor v. Holmes, 162 F.3d 368, 377
n.11 (5th Cir. 1998).
If the plaintiff succeeds in establishing a prima facie
case, it raises a presumption of discrimination. Sullivan v.
Worley Catastrophe Services, LLC,

Fed. Appx.

, No. 14-

30187, 2014 WL 6306710, at *2 (5th Cir. Nov. 17. 2014), citing St.
Mary’s Honor Center v. Hicks, 509 U.S. 502, 506 (1993).

The

burden of production then shifts to the defendant, who or which

- 14 -

must then articulate a legitimate, non-discriminatory reason for
the termination.

Id. at *3, citing Nichols, 81 F.3d at 41.

The

defendant may satisfy this burden by proffering evidence that “if
believed by the trier of fact, would support a finding that
unlawful discrimination was not the cause of the employment
action.”

Id., citing St. Mary’s Honor Ctr., 509 U.S. at 507.

The

employer is not required to prove that it was actually motivated
by these proffered reasons, nor must it demonstrate an absence of
discriminatory motive.

If the employer succeeds, the presumption

of discrimination falls away and the plaintiff must satisfy the
burden of persuasion on the question of intentional discrimination
by proving by a preponderance of the evidence that the employer’s
reasons are pretextual and that the discharge was motivated by
intentional age discrimination. (As discussed, under the ADEA the
plaintiff must show that age was the “but-for” cause of the
challenged employment action, while the TCHRA permits a mixed
motive, i.e., only one of the reasons for the action.)

Id.;

Assariathu v. Lone Start Health Management Associates, LP, 516
Fed. Appx. 315, 318 (5th Cir. Mar. 6, 2013).5 “Pretext may be shown
by

‘any

evidence

which

demonstrat[es]

that

the

employer’s

proffered reason is false’ or ‘unworthy of credence.’” EEOC v.

5

Unlike the TCHRA, the ADEA requires “but for”
causation rather than age being“a motivating factor.” Jackson v.
Host Intern., Inc., 426 Fed. Appx. 215, 219 n.2 (5th Cir. Feb. 1,
2011); Gross v. FBL Financial Services, Inc., 557 U.S. 167, 168
(2000); Moss v. BMC Software, Inc. , 610 F.3d 917, 928 (5 th Cir.
2010)(“to the extent that [plaintiff] alleges that discrimination
was a motivating factor--rather than the ‘but for’ cause--in
[defendant’s] decision not to hire him, his claims must fail.”).
- 15 -

DynMcDermott Petroleum Operations Co., 537 Fed. Appx. 437, 446 (5th
Cir. July 26, 2007),

citing

Burrell v. Dr. Pepper/Seven Up

Bottling Group, Inc., 482 F.3d 408, 412 & n.11 (5th Cir. 2007).
Although the burden of production shifts, the plaintiff always
retains the ultimate burden of persuasion that there is a nexus
between his termination and his age. St. Mary's Honor Center, 509
U.S. at

514-17; Odom v. Frank, 3 F.3d 839, 850 (5th Cir. 1993).

TCHRA and the Americans With Disabilities Act (“ADA”)
Section 21.105 of the Texas Labor Code, like the ADA, 42
U.S.C.

§

12112(a),

makes

it

unlawful

for

an

employer

to

discriminate against an employee on the basis of a disability that
does not impair the individual’s ability to reasonably perform a
job.

Holloway v. ITT Educational Services, Inc., No. Civ. A. H-

13-1317, 2014 WL 4273896, at *7 (S.D. Tex. Aug. 28, 2014). “Given
the similarity between the ADA and the TCHRA, Texas courts ‘look
to analogous federal precedent for guidance when interpreting the
Texas Act.’”

Rodriguez v. ConAgra Grocery Products Co., 436 F.3d

468, 473-74 (5th Cir. 2006), quoting NME Hospitals, Inc. v.
Rennels, 994 S.W. 2d 142, 144 (Tex. 1999); Williamson v. National
Ins. Co., 695 F. Supp. 2d 431, 452 (S.D. Tex. 2010)(collecting
cases).
Title I of the ADA, 42 U.S.C. § 12112(a), prohibits
discrimination against an employee on the basis of physical or
mental disability and requires an employer to make reasonable
accommodations necessary to allow an employee with a disability to
perform

the

essential

functions

- 16 -

of

her

job

unless

the

accommodation would impose an undue hardship on the employer.
Section 12112(a) of the ADA provides that no covered entity shall
“discriminate” against a qualified individual with a disability
because of the disability of such an individual in regard to,
inter alia, “the hiring, advancement, or discharge of employees .
. . and other terms, conditions, and privileges of employment.”
In

addition,

Section

12112(b)(5)

states

that

the

term,

“discriminate,” includes “not making reasonable accommodations to
the known physical or mental limitations of an otherwise qualified
individual with a disability . . . unless such covered entity can
demonstrate that the accommodation would impose an undue hardship
on the operations of the business of such covered entity.”
“A qualified individual with a disability” is defined as
“an individual with a disability
accommodation,

can

perform

who, with or without reasonable

the

essential

functions

of

employment position that such individual holds or desires.”
U.S.C. § 12111(8).

the
42

A disability is “(A) a physical or mental

impairment that substantially limits one or more of the major
activities of such individual; (B) a record of such impairment; or
(C) being regarded as having such an impairment.”
The ADA, as amended by the ADA Amendments Act of 2008
(“ADAAA”), Public Law No. 110-325, 122 Stat. 3553 (Sept. 25,
2008), by its express language became effective on January 1,
2009, while the final regulations issued by the EEOC became
effective on May 25, 2011.

76 Fed. Reg., 16978, 16999 (2011).

The ADAAA broadened the ADA’s original definition of “disability,”

- 17 -

“substantially limits,” “major,” and “regarded as” by adding 42
U.S.C. § 12102(2)-(4). Neely v. PSEG Texas, Ltd. Partnership, 735
F.3d 242, 245 (5th Cir. 2013).
The TCHRA was amended in 2009 to expand its coverage in
accordance with that of the ADA.

H.R. 978, 81st Leg., Reg. Sess.

(Tex. 2009); Molina v. DSI Renal, Inc., 840 F. Supp. 2d 984, 993
(W.D. Tex. 2012)(discussing the amending and expansion of the
TCHRA); Gardea v. DialAmerica Marketing, Inc., No. WP-12-CV-158KC, 2013 WL 1855794, at *10 (W.D. Tex. 2013); Carbaugh v. Unisoft
Intern., Inc., 2011 WL 5553724, at *7-8 (S.D. Tex. Nov. 15, 2011).
Because Plaintiff’s termination occurred on September
30, 2011 these amendments apply here.

“The ADAAA is principally

aimed at reversing Supreme Court precedent perceived as improperly
narrowing the scope of protection originally intended by drafters
of the ADA.6”

Louis P. DiLorenzo, The Intersection of the FMLA

and ADA--As Modified by NDAA, ADAAA and GINA, 860 PLI/Lit 47, 8384 (June 23, 2011); 29 C.F.R. § 1630.1(c)(4)(“reinstating a broad
scope

of

protection

under

the

6

ADA”;

“the

definition

of

Previously the ADA was construed as providing that an
employee is not disabled if his impairment is corrected by a
mitigating measure to the point where it does not substantially
limit a major life activity (e.g., by insulin given to a diabetic)
and that an impairment rises to the level of a disability only if
its impact is “permanent or long term.”
See Sutton v. United
Airlines, Inc., 527 U.S. 471 (1999)(requiring a court to take into
account the ameliorative effects of mitigating measures in
determining whether there was a disability) and Toyota Motor
Manufacturing v. Williams, 534 U.S. 184 (2002)(narrowly construing
and strictly interpreting the term “disability.”). Both these
cases were abrogated by the ADA Amendments Act of 2008 (“ADAAA”)
(see infra).
- 18 -

‘disability’ shall be construed broadly in favor of expansive
coverage to the maximum extent permitted by the terms of the
ADA”).

The EEOC emphasized that “the primary object of attention

in cases . . . should be whether the covered entities have
complied with their obligations and whether discrimination has
occurred, not whether the individual meets the definition of
disability.”

29 C.F.R. § 1630.1(c)(4).

Moreover “the ADA does not relieve a disabled employee
or

applicant

from

the

functions of the job.”

obligation

to

perform

the

essential

Wilkerson v. Boomerang Tube, LLC, 2014 WL

5282242, at *6 (E.D. Tex. Oct. 15, 2014), quoting Foreman v.
Babcock & Wilcox Co., 117 F.3d 800, 808 (5th Cir. 1997)(“To the
contrary, the ADA is intended to enable disabled persons to
compete in the work-place based on the same performance standards
and requirements that employers expect of persons who are not
disabled.”), cert. denied, 522 U.S. 1115 (1998).

In determining

whether a person is “qualified,” the court examines “‘(1) whether
the individual meets the necessary prerequisites for the job, such
as education, experience, skills and the like; and (2) whether the
individual can perform the essential job functions, with or
without reasonable accommodation.’” Id., citing id. Therefore to
avoid summary judgment the plaintiff must demonstrate “(1) that he
can perform the essential functions of the job despite his
disability; or (2) if he his unable to perform the essential
functions of the job, that a reasonable accommodation by the
employer would enable him to perform those functions.”

- 19 -

Id.,

citing Crossley v. CSC Applied Technologies, LLC, 569 Fed.
195, 198 (5th Cir. May 22, 2014).

Appx.

The ADA does not require an

employer to reassign the employee to an occupied job, create a new
job, eliminate essential functions of a job, or assign existing
employees or hire new employees to perform the functions of the
employee’s job that the employee could not perform.

Wilkerson,

2014 WL 5282242 at *7, citing inter alia Toronka v. Continental
Airlines, Inc., 411 Fed. Appx. 719, 724 (5th Cir. 2011)(“It would
not be a reasonable accommodation to require the employer to
eliminate essential job functions, modify job duties, reassign
existing employees, or hire new employees.”).
To state a claim under § 12102(1), a plaintiff must
allege that he has a disability, i.e., “(A) a physical or mental
impairment that substantially limits one or more major life
activities of such individual; (B) a record of such impairment; or
(C) being regarded as having such an impairment (as described in
paragraph (3)).”

Section 12101(2)-(4), recently added by the

ADAAA, provides in relevant part,
(2) Major life activities
(A) In general
For purposes of paragraph (1) major life
activities include, but are not limited
to, caring for oneself, performing
manual tasks, seeing, hearing, eating,
sleeping, walking, standing, lifting,
bending, speaking, breathing, learning,
reading,
concentrating,
thinking,
communicating, and working.
(B) Major bodily functions

- 20 -

For purposes of paragraph (1), a major
life
activity
also
includes
the
operation of a major bodily function,
including but not limited to, functions
of the immune system, normal cell
growth,
digestive,
bowel,
bladder,
neurological,
brain,
respiratory,
circulatory, endocrine, and reproductive
functions.
(3) Regarded as having such an impairment
For purposes of paragraph (1)(C):
(A) An individual meets the requirement
of “being regarded as having such an
impairment”
if
the
individual
establishes that he or she has been
subjected to an action prohibited under
this chapter because of an actual or
perceived physical or mental impairment
whether or not the impairment limits or
is perceived to limit a major life
activity.
(B) Paragraph (1)(C) shall not apply to
impairments that are transitory and
minor.
A transitory impairment is an
impairment with an actual or expected
duration of 6 months or less.
(4) Rules of construction
definition of disability

regarding

the

(A) The definition of disability in this
chapter shall be construed in favor of
broad coverage of individuals under this
chapter, to the maximum extent permitted
by the terms of this chapter.
(B) The term “substantially limits”
shall be interpreted consistently with
the findings and purposes of the ADA
Amendments Act of 2008.
(C) An impairment that substantially
limits one major activity need not limit
other major life activities in order to
be considered a disability.

- 21 -

(D) An impairment that is episodic or in
remission is a disability if it would
substantially limit a major activity
when active.
(E)(i) The determination of whether an
impairment substantially limits a major
life activity shall be made without
regard to the ameliorative effects of
mitigating measures such as–
(I) medication, medical supplies,
equipment, or appliances, low-vision
devices (which do not include ordinary
eyeglasses
or
contact
lenses),
prosthetics including limbs and devices,
hearing aids and cochlear implants or
other
implantable
hearing
devices,
mobility devices, or oxygen therapy
equipment and supplies;
(II) use of assistive technology;
(III) reasonable accommodations or
auxiliary aids or services; or
(IV) learned behavioral or adaptive
neurological modifications . . . .
A

covered

employer

must

provide

reasonable

accommodations to an otherwise qualified person with a disability
unless the employer can show that the accommodation “would impose
an undue hardship” on the employer.
The

plaintiff

bears

accommodations.
(5th Cir. 2007).

the

burden

42 U.S.C. § 12112(b)(5)(A).
of

requesting

reasonable

Jenkins v. Cleco Power, LLC, 487 F.3d 309, 315
“‘The employee who needs an accommodation

because of a disability has the responsibility of informing her
employer.’” Griffin, Sr. v. United Parcel Service, Inc., 661 F.3d
216, 224 (5th Cir. 2011), quoting EEOC v. Chevron Phillips Chem.
Co., 570 F.3d 606, 621 (5th Cir. 2009). “‘[W]here the disability,

- 22 -

resulting limitations, and necessary reasonable accommodations are
not open, obvious, and apparent to the employer, the initial
burden rests primarily upon the employee . . . to specifically
identify the disability and resulting limitations, and to suggest
the reasonable accommodations.’” Id., citing id. If the employee
does so, “‘the employer and the employee should engage in a
flexible, interactive discussion to determine the appropriate
accommodation.’”

Id., citing EEOC v. Agro Distrib., 555 F.3d

462, 471 (5th Cir. 2009).

While the employee has a right to a

reasonable accommodation, the right is not to his preferred
accommodation.

Id., citing id.

“‘The employee bears the burden

of proving that an available position exists that he was qualified
for and could, with reasonable accommodations, perform.’”

Id.,

quoting Jenkins v. Cleco Power, LLC, 487 F.3d 309, 315 (5th Cir.
2007).

“‘A disabled employee has no right to a promotion, to

choose what job to which he will be assigned, or to receive the
same compensation as he received previously.’”
at 316.
faith

Id., quoting id.

“‘[W]hen an employer’s unwillingness to engage in a good

interactive

process

leads

to

a

failure

to

reasonably

accommodate an employee, the employer violates the ADA.’”

Id.,

quoting Loulseged v. Akzo Nobel, Inc., 178 F.3d 731, 736 (5th Cir.
1999).
when

“‘[A]n employer cannot be found to have violated the ADA
responsibility

for

the

breakdown

of

the

‘informal

interactive’ process is traceable to the employee and not the
employer.’”

Id., quoting id.

- 23 -

Mitigating

measures

(such

as

medications,

medical

devices and assistive technology) are ignored when assessing
whether an impairment substantially limits a person’s major life
activities. ADA Amendments Act of 2008, Sec. 4 § 3(4)(E)(1), 122
Stat. 3553, 3556.

Moreover, the court may consider the negative

effects of a mitigating measure, e.g., effects of medication, in
determining whether the individual is substantially limited in a
major life activity.
Furthermore, individuals who are “regarded as disabled,”
but who do not actually have a disability, only need to show that
they were subjected to an action prohibited by the statute, and no
longer that the disability substantially limited them in a major
life

activity.

Employers

need

not

provide

reasonable

accommodations to those employees only “regarded as” having a
disability.

ADA Amendments Act of 2008, Sec. 6 § 501 (l)(h), 122

Stat. 3553, 3558.
Panduit’s Motion for Summary Judgment (#15) and Memorandum (#16)
Panduit identifies the issue in this litigation as
whether Plaintiff Freddie Bleiweiss was impermissibly chosen for
a layoff in a business reorganization based on his age and/or
disability.

Panduit argues that Plaintiff fails to present any

direct or circumstantial evidence of discrimination based on
either age or disability.
Panduit, a manufacturer and provider of network and
electrical solutions for its customers, hired Plaintiff on or
around January 3, 2006 when he was fifty-two years old and
- 24 -

employed him as a systems sales engineer (“SSE”) until October 1,
2011, when he was 58.

7
#16, Ex. A, Decl. of Melissa Fideli at ¶¶

3 and 12; Ex. B, Plaintiff’s Dep. at 30:2-5; Ex. C, Probationary
Employee Notification Form.8

He was employed as part of the

“technical sales team,” which was then organized by regions (west
coast, Chicago area, south central, New York, and central region).
Each region had a vice president of sales overseeing an SSE, an
application engineer (“AE”), and a technical sales manager for the
applicable geographic territory.

Plaintiff, as the SSE for the

central region, was responsible for aiding the sales force in
selling a software product designated as “PIM.”
of

#16, Declaration

Melissa Fideli, Ex. A at ¶ 3; Plaintiff’s Dep., Ex. B at pp.

34:13-7, 36:17-21, and 41:17-25.9

Plaintiff testified that the

job of the AE on the team required a different set of skills than
that of an SSE and focused on the electrical side of the business.

7

At times Fideli is called Melissa Prochot, her married

name.
8

Citations in the discussion of Panduit’s motion for
summary judgment are all to Defendant’s summary judgment evidence,
attached to #16, unless otherwise indicated.
9

In his response in opposition to the motion for
summary judgment, Plaintiff states that PIM was only one of his
job duties and that he also (1) supported the Management Network
Services Group (“MNS”), which focused on Panduit products from RiT
Technologies, (2) designed “data centers, including mapping the
cabling infrastructure in data centers and mapping the network
architecture to physical connectivity,” and (3) performed all the
job functions set out in the SSE job description (Ex. B to #17).
#17 at p. 3.
- 25 -

Ex. B at p. 42:4-19; Kean Dep., Ex. D at p. 12:19-25.

10

The

regional technical support manager (“RTSM”) position also required
different skills and had duties distinct from those of the SSE.
Ex. A at ¶ 3; Ex. B at p. 42:19-25.

As the SSE for the Central

Region, Plaintiff reported to regional manager Phil Taylor, prior
to the hiring of Kean and the restructuring of the company.

Ex.

B at pp. 38:6-10, 45:6-9, and 47:20-22.
When the company decided to restructure its national
sales division in March 2011, Panduit first created a position
titled Director of Solution System Engineering (“Director”), hired
Kean

for

the

job

to

realign

the

department,

simultaneously

eliminated the regional structure for the technical sales team
(which was comprised of SSEs, AEs, and RTSMs), and replaced it by
having all technical sales staff report to that one Director.

Ex.

B at pp. 63:15-64:10; Kean Dep. Ex. D at pp. 4:23-5:5, 10:12-21,
21:17-22:3.

The fifteen employees, including SSEs, AEs, and

RTSMs, who reported to Kean were Plaintiff (age 58), Steve Turvey
(33), Mike Mazzotta (46), Jeff Yeary (48), Sam Samaniego (50),
Jorge Labrada (48), Mike Newman (50), Kevin Hogan (42), Jason
Campbell (36), Chris Woods (54), John French (58), Ray Brauer
(53), Herman Bassett (51), James Lynch (46), and Michael Healey

10

During his deposition Kean testified that the
difference between an SSE and an AE was that an SSE “focused on
our network side of the business, and the application engineer
focused on the electrical side of the business.” #17, Ex. E at p.
12:16-25.
- 26 -

(53).11

Ex. A ¶ 10; Ex. D at pp. 16:13-18:7; and business records,

Ex. F.

Panduit gave Kean free reign to use his knowledge and

experience to reorganize by consolidating and creating a focus
around the technical engineers, a group that would become known as
the technical systems engineers (“TSE”).
Instead of by regions, Kean wanted to realign the sales
team to be borderless and to be organized around three different
markets, or “solutions,” with products to span across all three:
the data center, enterprise (office buildings), and industrial.
Ex. D at pp. 33:1-12, 36:20-24.

Kean created a Technical Support

Engineer (“TSE”) position, which would be a pre-sales support
position for the sales staff in each of the three markets.
at p. 33:10-17.

Ex. D

He also created a post-sales position for a

support engineer.

These new positions would not be product-

focused, i.e., on software, network or electrical products, as had
previously been the case for the SSEs and AEs.
19.

Ex. D at p. 41:9-

Furthermore, Kean eliminated the SSE positions.

Ex. E at ¶

6.
Over

the

next

six

months

Kean

assessed

the

new

structure, identified the positions and the job requirements
needed for them, reviewed geographical business needs, and
considered which current SSEs and AEs could fill the new jobs.
Kean Dep., Ex. D at 37:16-25.

He met with current members of the

technical sales team as a group and individually, traveled with

11

Stated ages were the employees’ ages at the time of
the reorganization.
- 27 -

each member to assess his skill set, and issued self-assessments
to

each

to

decide

what

skill

reorganization staffing decisions.

set

was

needed

in

making

Of the technical sales team

reporting to Kean, only Plaintiff did not complete the requested
self-assessment.

Ex. D at p. 52:20-53:5; email communication from

Plaintiff to Kean, Ex. G.

Kean used these self-assessments to

prepare a detailed job skills analysis of the fourteen employees
in his department, which scored the employees on the skills
determined to be necessary for the new positions.

Ex. D at pp.

50:19-51:16; Kean’s job skills assessment, Ex. H.; Ex. F, a
spreadsheet which identifies employees’ points/score based on
length of service and cumulative performance review for the last
two years.

The

SSE position was eliminated, and the employees

who were retained would be classified as either TSEs or support
engineers.

Ex. D at p. 38:12-25.
The reorganization negatively impacted three employees

in the technical sales team:

Ray Brauer and Mike Newman, who had

the lowest scores based on the skills assessment and length of
service/performance reviews (Exs. F and H), and Plaintiff because
Kean determined from his analysis and observing and talking to
Plaintiff that Plaintiff’s skills and experience related only to
the software or network side of the business (DCIM, or data center
infrastructure

manager

or

management),

and

that

he

lacked

necessary skills in other areas such as labeling standards, power
and grounding standards, hands-on experience with fiber (fiber
optic cable, fiber optic connectivity, etc.), copper connectivity,

- 28 -

and computational fluid dynamics.
25, 43:8-25, 44:11-14, 48:12-24.

Ex. D at pp. 41:2-42:1, 42:1Panduit focused on product that

can be seen and touched, designated by the industry as “layer 1,”
while Plaintiff’s strengths were in the network/software side of
data centers, or “layer 2.”

Ex. D at pp. 44:1-14; Ex. e at ¶ 2.

With the elimination of the SSE position, Kean selected these
three employees (Brauer, Newman, and Plaintiff) to be laid off, a
decision

that

resources.12
“ultimate

was

reviewed

by

his

superiors and by human

At his deposition, Kean testified that he was the

decision-maker”

and

identified

the

superiors

who

reviewed the layoff decision as Vice President of North American
Sales

Deb

Huttenburg,

Senior

Vice

President

Kokuzian, and Human Resources’ Melissa Fideli.
34:l-35:22.

of

Sales

Pete

#16, Ex. D at pp.

The three employees to be laid off were notified of

their terminations on September 26, 2011 (Termination Notice, Ex.
I).
Plaintiff now works as a solutions engineer with Nlyte
Software and assists the sales team in the technical aspects of
the single software product that the company sells.

Ex. B at pp.

11-12.
While he was employed at Panduit, Plaintiff had a lower
back problem, which, after his termination, he learned in January

12

During his deposition Kean conceded that Huttenburg
and Kokuzian’s input was “more of a rubber stamp review, yeah, on-based on my decision,” while Fideli’s role was limited “to
help[ing Kean] communicate to the employees what was going to
happen.” #17, Ex. E at p. 54:4-6, 55:9-16.
- 29 -

2012 was the result of two degenerated hips.
Plaintiff

stated

that

while

at

Panduit

Ex. B at pp. 27-28.
he

had

mobility

difficulties, at times causing him to walk with a limp and/or
cane.

Ex. B at p. 121:11-24.13

Panduit states that Kean did not

make any direct statements about Plaintiff’s physical abilities or
disabilities, but that Plaintiff perceived that when Kean observed
Plaintiff having problems, Kean would make affirmative statements
about Kean’s own physical abilities.
97:17-23.

Ex. B at pp. 93:15-95:5,

The sole example that Plaintiff could remember was on

a sales trip that Kean and Plaintiff took together around the
summer of 2011.

Ex. B, at pp. 94:15-95:5, 97:17-23.

At the

check-in at a hotel, after Plaintiff dropped a pen and claimed he
had problems trying to bend down to retrieve it, Kean told
Plaintiff that he, Kean, was going to go jogging that evening.
Ex. B at pp. 94:6-95:5.

Plaintiff further alleges that on that

same trip Kean asked why Plaintiff rented an SUV because Kean was
concerned about the travel expense of the rental.

Ex. B at pp.

95:6-16. 96:6-20.14

13

The Court observes that during Plaintiff’s deposition
when he was asked whether around the time of his layoff in August
or September of 2011 his back condition limited his ability to
perform the sales engineering position, he responded, “Not one
bit.” #17, Ex. A, at p.128:9-17.
14

The Court observes that these two remarks clearly are
not “direct and unambiguous, allowing a reasonable jury to
conclude without any inference or presumption that age was
determinative factor in deciding to terminate” Plaintiff so as to
be
probative
of
discriminatory
bias
against
Plaintiff’s
disability. Wyvill, 212 F.3d at 304.
- 30 -

That same summer there was an event in Chicago that
offered among other social activities riding in bumper cars, for
which attendance was not required.
at pp. 66:3-13, 22-67;20.
him

why

he

was

not

Ex. B at pp. 124:9-21; Ex. D

Plaintiff states that when Kean asked

participating

in

the

bumper

car

event,

Plaintiff responded that the activity would not be good for his
back.

Ex. B at p. 126:15-22; Ex. D at p. 66:14-25.

15

Kean made

no other statement about Plaintiff’s physical abilities.

Ex. B at

pp. 126:23-127:12.
Panduit

maintains,

and

Plaintiff

does

not

claim

otherwise, that Kean never made a direct statement to Plaintiff
about his age.

Ex. B at p. 93:1-4.

A plaintiff alleging age or disability discrimination
where a reorganization or reduction in force is involved must make
a prima facie showing (1) that he is in a protected group, (2)
that he was adversely affected by the employer’s decision, (3)
that he was qualified to assume another position at the time of
discharge, and (4) evidence, either circumstantial or direct, from
which a fact finder might reasonably conclude that the employer
intended to discriminate in reaching its decision. Love v. Hajoca
Corp., No. Civ. App. 4:11-1192, 2013 WL 4875045, at *4 (S.D. Tex.
Sept. 11, 2012), citing Woodhouse v. Magnolia Hosp., 92 F.3d 248,
252 (5th Cir. 1996), appeal dismissed, 13-20613 (5th Cir. Apr. 22,

15

Nor is this statement sufficiently direct to be
probative of disability discrimination.
- 31 -

2014).

Panduit maintains that Plaintiff has not and cannot

satisfy the third and fourth elements of a prima facie case.
Plaintiff concedes that Kean, the decision-maker for the
reorganization and accompanying lay-offs, made no direct comments
about

his

age,

discrimination.

nor

is

there

any

other

direct

evidence

of

Plaintiff’s only evidence is his claim that

“everybody else over 50 that worked for Tom Kean” was either laid
off or demoted.

Ex. B at pp. 89:5-90:15.

Panduit highlights the

fact that Plaintiff omits mentioning that John French, age 58, was
selected at the time for a new TSE position, as were Christopher
Woods (54) and Hermann Bassett (51), while Sam Samaniego (51) was
retained in a post-sales role.
fourteen

employees

Ex. A, ¶ 11; Ex. E at ¶ 7.

considered

by

Kean

for

layoff

in

Of the
the

reorganization, twelve were over the age of 40 and the average age
of the group was 50; Ex. E at ¶ 7.
Furthermore if Plaintiff argues that younger employees
should have been chosen for layoff, he fails to satisfy the
requirement

in

a

reduction

force

case

employees were “clearly less qualified.”16
16

to

show

that

younger

Love, 2013 WL 4875045

Regarding the third step of the McDonnell Douglas
shifting burden framework, to raise a genuine issue of material
fact as to whether the employer’s articulated reason for the
discharge was pretextual, the Fifth Circuit has opined that a
showing that the plaintiff was “‘clearly better qualified’ (as
opposed to merely better than or as qualified [as]) the employees
who are selected’ will be sufficient to prove that the employer’s
proffered reasons are pretextual.” Moss v. BMC Software, Inc.,
610 F.3d 917, 923 (5th Cir. 2010), quoting EEOC v. La. Office of
Cmty. Servs., 47 F.3d 1438, 1444 (5 th Cir. 1995). Furthermore,
”’unless the qualifications are so widely disparate that no
reasonable employer would have made the same decision,’” any
- 32 -

at *7, citing Texas Instruments, 100 F.3d at 1181.

In addition

Plaintiff fails to submit any evidence to controvert the skills
assessment made by Kean, which demonstrates that age was not a
factor in the choice to lay Plaintiff off.
Even if Plaintiff had made a prima facie case, Panduit
has

articulated

a

legitimate,

nondiscriminatory

reason

for

discharging him, and Plaintiff has provided no evidence to suggest
that

Panduit’s

reorganization

plan

that

hired

Kean

or

the

assessment process carried out by Kean were motivated in whole or
in part by discriminatory animus based on age.

Nor can Plaintiff

prove pretext for discrimination for each of Panduit’s proffered
reasons for his layoff.

Instead Plaintiff simply claims that his

position was not eliminated, that others are performing his job,
and that some unknown person was hired for his position.
As support for Plaintiff’s disability claim, Plaintiff
asserts that three “facts” support it:

(1) He “was periodically

making noise about . . . the lost benefit [the company car switch
from an SUV to sedan]”17; (2) “[I]t was obvious to a lot of people

“‘differences in qualifications are generally not probative
evidence of discrimination’”; “‘the bar is set high for this kind
of evidence.’”
Moss, 610 F.3d at 923, citing Celestine v.
Petroleos de Venezuella SA, 266 F.3d 343, 357 (5th Cir. 2001).
Thus to show that he was “clearly better qualified” than the
individual(s) who got the job(s), the plaintiff must submit
“evidence from which a reasonable jury could conclude that ‘no
reasonable person, in the exercise of impartial judgment, could
have chosen the candidate selected over the plaintiff for the job
in question.’” Id. citing Deines v. Texas Dep’t of Protective &
Regulatory Servs., 164 F.3d 277, 280-81 (5th Cir. 1999).
17

Panduit points out the change from the Trail Blazer
SUV to the Taurus sedan was made for all employees who were
- 33 -

that [he] either needed a cane to help him walk or [he] had a
mobility problem and it was very easy to see [him] limping down
the hallways.“; and (3) Pete Kokuzian, a sales executive and host
of the Chicago event, who was not involved in the layoff decision,

eligible for a company vehicle and the substitution was made for
economic and environmental reasons. Ex. A at ¶ 4; Ex. B at pp.
98:18-99:25, 100:18-lo1:1. Moreover, when Plaintiff asked to be
allowed to retain an SUV, as an alternative accommodation Panduit
offered to pay for a seat modification if Plaintiff chose the
sedan, or, alternatively, if he chose to purchase his company SUV
as his personal vehicle, Panduit would reimburse Plaintiff for any
mileage he incurred for business purposes. Ex. A at ¶ 7.
According to Panduit Plaintiff rejected the offer and insisted
that he be paid a car allowance or some monthly stipend that he
thought would make up for the lost benefit. Ex. B at pp. 102:15103:11. (Panduit insists that he did not refuse to take the offer
of a seat modification, but that after multiple attempts he was
unable to find a seat cushion for the sedan that relieved his
pain. #17 at p. 6.) Panduit denied his request for a car
allowance in the Fall of 2010, nearly a year before it decided to
bring Kean into the company. Ex. A at ¶ 8; Ex. B at pp. 132:22133:2. Thus not only is there a lack of evidence connecting his
layoff by Kean to the car allowance decision, but there is not the
close temporal proximity required to establish causation for a
prima facie case. See, e.g., Carroll v. Sanderson Farms, Inc. H,
10-3108, 2012 WL 3866886, at *4 (S.D. Tex. 2012)(even three and
four-month time periods have been deemed insufficient for
proximity within the context of retaliation under the FMLA, ADA
and TCHRA); see also Gober v. Frankel Family Trust, 537 Fed. Appx.
518, 523 (5th Cir. July 31, 2013)(“Even though suspicious timing
can be evidence of pretext, it is sufficient to survive summary
judgment only when combined ‘with other significant evidence of
pretext.’”), citing Shackelford v. Deloitte & Touche, LLP, 190
F.3d 398, 409 (5 th Cir. 1999). Moreover, all this took place
nearly a year before the layoff. Panduit argues that Plaintiff
has not submitted any evidence that the reorganization was
pretextual.
As for Plaintiff’s assertion that he “continued to make
noise” about the lost car benefit as evidence that he was laid off
because of his disability, Plaintiff testified that a few weeks
after Kean assumed his position, Plaintiff again asked Kean about
getting a car allowance, but Kean referred Plaintiff to human
resources since the original denial occurred before Kean’s arrival
at Panduit. Kean and Plaintiff did not discuss the request
further. Ex. B at p. 133:5-11.
- 34 -

was “upset that [Plaintiff] would not play basketball bumper cars
at a social event and Plaintiff “had to explain to him that the
impact of bumper cars was not conducive to my good health.”
B at pp. 121:7-24, 123:22-124:8.

Ex.

Panduit insists that Plaintiff

fails to make a prima facie case of disability discrimination
because there is no evidence that he was laid off because of his
disability;

instead

he

offers

only

“vague

perceptions

and

subjective assumptions based on his own comfort or lack there of
with his limitations.”

#16 at p. 12.

For instance he alleges

that Kean made statements about his own athleticism or activities
at times that Plaintiff believes Kean perceived Plaintiff as
struggling physically.

Ex. B at p. 93:5-19'.

Plaintiff conceded

that Kean made no direct statements about Plaintiff’s abilities or
disabilities.

Ex. B at p. 97:10-13.

Plaintiff cannot establish a

prima

facie

case of

disability discrimination based on “conclusory allegations . . .
or subjective beliefs and feelings.”

Michael v. City of Dallas,

314 S.W. 3d 687, 692 (Tex. App.--Dallas 2010).
reorganization

or

reduction

in

Furthermore, a

force is a legitimate

nondiscriminatory reason for termination for both the age and the
disability discrimination claims.

Texas Instruments, 100 F.3d at

1181; Holloway, 2014 WL 4273896, at *10.
Plaintiff’s Response (#17)
The
essentially

Court

does not repeat statements that are

in accord with Panduit’s representations.

- 35 -

Insisting that he had all the skills necessary to
perform the functions of the new positions established as part of
Panduit’s reorganization, Plaintiff contends that the old and new
positions have substantially the same functions and requirements.
Plaintiff

claims

that

while

Kean

was

the ultimate

decision maker in Plaintiff’s termination, Deb Huttenberg, Pete
Kokuzian (Senior Vice President of Sales), and Melissa Fidelli
(Human Resources) also participated in the decision, but does not
further allege or show that they in any way discriminated against
him based on his age or disability.
Citing

a

presentation

entitled

“Technical

Sales

Transformation, September 2011" (Ex. J), Plaintiff charges that at
the time of his discharge Panduit was extremely busy and actually
needed more employees to meet customer demands, certainly not an
economic condition justifying a reduction in force.

He cites an

organizational structure chart showing that at the time of his and
two other SSE’s terminations, there were five open positions.

Ex.

K.18
Regarding

Kean’s

testimony

that

the

reorganization

involved the creation of two new kinds of positions, TSEs in presales and support engineers in post-sales, Plaintiff claims that

18

The Court notes that Panduit claims that it effected
the reorganization not because of the economy, but in order to
consolidate its sales division for more efficient matching of the
skills of Panduit’s technical staff with the three “solutions”
(the data center, the enterprise, and the industrial) on which the
business was focused and to consolidate operations. #16, Kean
Dep., Ex. D at pp. 33:1-12 and 36:20-24.
- 36 -

before the reorganization SSEs performed both functions within
that one position.

See chart on p. 9 of #17.

While Panduit

maintains that the “new positions would no longer be product
focused,

i.e.,

on

software

products,

network

products

or

electrical products,” the TSE job description recites that a TSE
must “understand the advantages and disadvantages of passive and
active management; understand the role of hardware and software in
the infrastructure management solution; and software in the DCIM
solution.”

Panduit’s motion for sum. j. at p. 4; TSE Job

Description, Ex. L.
“to

understand

The job description further requires that TSE
Panduit

product

specifications,

industry

specifications such as ANSI/EIA/TIA, ISO, IEEE, NEC and BICSI,” in
other words the technical and product knowledge that Plaintiff
asserts he possessed and which Panduit claims was not part of the
new position.

Ex. L.

As for allegations that Kean met with all current
members

of

the

technical

sales

team,

traveled

with

them

individually to assess their skills and, in his case, deficiencies
(Kean Dep., Ex. E, 45:9-48), and gave self-assessments to all in
order to discover their skill sets, Plaintiff disagrees.

He

states that Kean never met with him individually and that the
single time Kean ever observed his work was during a two-day
business trip.

Plaintiff’s Affid., Ex. C at p.2.

Nor did Panduit

explain the standard for determining what score the employees
received on the job skills assessment categories.

As an example,

Plaintiff notes he was rated a “3" in the “Ability to read,

- 37 -

analyze,

and

interpret

technical

journals

and

engineering

specifications,” but Kean never observed Plaintiff nor spoke to
him regarding this skill.
Plaintiff also states that even before he was hired by
Panduit, he had extensive knowledge of the areas which Panduit
named as ones in which he lacked skills or experience, i.e.,
labeling standards, power and grounding standards, fiber (fiber
optics,

connectivity,

etc.),

computational fluid dynamics.

copper

connectivity,

and

Resume of Qualifications, Ex. M.

He claims that he was expert in layer 1 infrastructure, which
included the sale of Panduit products on Panduit’s Physical
Infrastructure Systems composed of copper systems, fiber optics
systems, power over Ethernet, zone cabling, wireless, outlets, PIM
software, overhead and under floor routing, cabinets, racks, cable
management, grounding and bonding, labeling and identification,
and cable management accessories.
p.1, ¶ 2.

Plaintiff’s Affid., Ex. C at

Even though in the resume he submitted in applying for

the SSE position he had indicated that he had over twenty years of
Systems/Pre-Sale Engineering and Management Experience, over ten
years of Operation and Building Network and/or Data Operation
Center

Experience,

and

over

ten

years

of

Software

Presales

Experience, plus numerous other relevant skills, certifications
and experience, Panduit still incorrectly states that he did not
work in any of these areas.

Id.

Plaintiff further charges that

the survey used by Kean to determine who was qualified for the new
positions, which Plaintiff voluntarily chose not to complete and

- 38 -

submit, was not applicable to any of the functions of an SSE and
was never before used to assess the skills of one; instead it is
used for electricians/cable installers that work as contractors to
resell and install Panduit products.

Id.; Actual PCI Survey Ex.

N.19

For this reason, when Kean required all his SSEs to complete

the

survey,

Plaintiff

claims

that

he

merely

asked

for

clarification on how to respond,20 and that Kean ignored his
inquiry.
Lastly,

Plaintiff

contends

that

the

only

persons

terminated or demoted as a result of the purported reorganization
were over forty years of age:

Michael Newman (50); Sam Samaniego

(50); Jeff Yeary (48).21
19

Plaintiff quotes the responses of other SSEs to the
survey in an effort to show that they lacked the skills or felt
inadequate to perform such tasks. Exs. O, P, Q, R, S.
20

Panduit responds that the email, #16, Ex. G, from
Plaintiff to Kean regarding Kean’s request that everyone complete
the survey demonstrates that Plaintiff did not seek clarification.
Rather, and indeed reflecting his deficiencies for the newly
created positions, Plaintiff responded,
This is a very poorly written survey with
multiple compound questions. I have not had
hands on Panduit fiber training (except for
inviting myself to a PCI training session
given by Sam Samaniego). I have worked with
fiber in the past (prior to Panduit) but not
to the level implied in the survey. I was
hired for my software, systems, data center,
consulting and business expertise not my
ability to splice and terminate fiber at a
“high yield.”
21

As Panduit shows, Samaniego and Yeary were offered
and accepted the new position as support engineers upon the
elimination of the SSE position. While Plaintiff calls this a
“demotion,” the SSE and AE positions had been eliminated and these
- 39 -

Panduit’s Reply (#18)
Panduit replies that Plaintiff’s response is composed of
unsupported factual assertions, impermissible hearsay, immaterial
issues of fact, a misunderstanding of the reorganization, an
inability to recognize his own shortcomings as identified by Kean
as director of the reorganization, subjective assertions that he
was better qualified to assume one of the new positions, and
incorrect assertions that the old and new positions were the same.
Moreover Plaintiff has no direct or circumstantial evidence of
either age or disability discrimination.

The mere existence of an

alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment.
Fidelity & Guar. Co. v. Wigginton, 964 F.2d 487, 489 (5
1992).

th

U.S.
Cir.

A genuine issue of material fact sufficient to defeat a

summary judgment requires that the “evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”
Royal v. CCC & Tres Arboles, LLC, 736 F.3d 396, 400 (5th Cir.
2013).

“Material facts” must be “facts that might affect the

outcome of the suit under governing law.” U.S. Fidelity, 964 F.2d
at 489.
Plaintiff’s unsupported factual allegations that the
business climate required more, not fewer employees fail to
undermine the purpose of the Panduit reorganization, which was not
in response to a poor or a booming economy, but to better and more

two qualified and accepted the new, available positions.
- 40 -

efficiently match the skills of Panduit’s technical staff with the
three “solutions” (the data center, the enterprise, and the
industrial) on which the business was focused and to consolidate
operations.

#16, Kean Dep., Ex. D at pp. 33:1-12 and 36:20-24.

Plaintiff has not submitted any evidence raising a genuine issue
of

material

fact

regarding

this

legitimate

reorganization articulated by Panduit.

reason

for

the

He has conceded that he

knew a reorganization was about to occur and that Kean was hired
as part of that process, but was largely kept in the dark about
it.

#17, Ex. A at p. 64:1-22.

If Kean did tell the team

initially that all the current SSEs’ jobs would be safe, as
Plaintiff claims, his objection that it was false is not a dispute
of material fact.

Kean testified that when he was hired, no plan

for a reorganization existed and that he was given the power to
create a plan.

Thus no one knew what it would ultimately look

like. Id. at pp. 21:17-22:7.

Whether or to what extent employees

recognized that their jobs were in danger is not material to
whether Kean acted pursuant to an unlawful bias based on age or
disability when selecting Plaintiff for elimination.

Even if

Plaintiff’s assertion that Kean told them their jobs were safe
were true, there is also no evidence that Plaintiff was told any
different information than that shared with the other employees.
Whether Plaintiff was given job descriptions of the new positions,
or cross-training, or provided in advance with the criteria used
to assess the skills of the technical staff is also not material.
Plaintiff failed to submit any evidence that anyone outside of the

- 41 -

protected categories was treated any differently than he based on
age or disability.

While he conclusorily claims without any

citation to the record that no other employee in the technical
team was disabled, there is no evidence in the record as to the
physical or mental impairments of any other employee at Panduit to
establish a comparison.
Furthermore, a plaintiff cannot raise a genuine issue of
material fact merely by contradicting his own earlier sworn
Holtzclaw v. DSC Comm. Corp., 255 F.3d 254, 259 (5th

statement.

Cir. 2001); S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495
(5th Cir. 1996)(holding that an affidavit impeaching earlier sworn
deposition testimony, without explanation, cannot create a fact
issue).
Plaintiff makes a number of statements without citations
to the record that are not supported by testimony or evidence,
including the following:

(1) the Panduit job posting to which he

originally responded sought someone with software experience with
data centers; (2) Plaintiff was hired to assist the sales force in
selling a particular software product (PIM); (3) he had the same
software focus at the time he was terminated; (4) his SSE job was
different from that of the AEs and RTSMs, both of which required
different skill sets from that of an SSE; (5) he lacked personal
knowledge of the skills or duties possessed by AEs and RTSMs; and
(6) the RTSM positions required expertise in cabling issues to
discuss the technical aspects of copper or fiber.

- 42 -

#17, Ex. A at

pp. 30:16-31:7; 34:13-22; 36:17-21; 42:4-43:8; 57:15-24; 58:2559:14; 60:24-63:9.
Furthermore, Plaintiff has conceded that (1) he lacks
personal knowledge to support his claim that his SSE position was
not eliminated (#17, Ex. A, 76:2-77:1; 86:4-12); (2) he lacked
personal knowledge about who was involved in the decision to
terminate him (id., 80:22-81:10); (3) he lacked personal knowledge
about the process used to select employees for layoff (id., 81:1114); (4) he lacked personal knowledge beyond hearsay conversations
about whether any employees were demoted (id., 82:10-13, 84:4-12);
(5) when asked to identify any younger employees who were retained
but who had inferior skills to his own, Plaintiff identified only
Mike Mazzotta (46), Kevin Hogan (42), and Jorge Labrada (48)(Ex.
A, 88:2-23).

There is no evidence in the record about the

substantive qualifications of these three men by themselves or in
comparison to those of Plaintiff.
Subsequently Plaintiff identified Steve Turvey and Jason
Campbell as younger, less qualified employees performing the same
or similar job as he but who were kept on in the reorganization.
#17 at p.11.

Panduit points out that Campbell was employed as an

AE, a position which Plaintiff has stated was different from his
own and required a different skill set.
position in Canada.

Turvey had the only

Plaintiff makes no showing that his skills

were superior to those of Turvey or Campbell.
Ex. A, p. 42:4-19.

#16, Ex. F; #17,

Panduit further emphasizes that Plaintiff

- 43 -

“selectively ignores” the other ten or eleven employees considered
in the reorganization, the average age of whom was over 50.
Plaintiff requested an accommodation of a car allowance22
in lieu of the Taurus car benefit for his disability on November
18, 2010.

#17, Ex. H.

He now tries to imply he made that request

merely a few months before his discharge and claims that Fideli,
who had the car discussion with Plaintiff, was involved in the
decision to terminate him.

Despite this effort, Plaintiff has

conceded, and the emails confirm, that discussions regarding a
company car occurred in October and November 2010 before Kean was
hired and almost a year before the September 2011 layoffs.
Ex. A at pp. 132:22-133:2; Ex. H.

#17,

As indicated earlier, Plaintiff

testified that he did not know who was involved in the decision to
lay him off.
resources

was

During his deposition Kean testified that human
not

involved

in

the

decision,

but

only

in

communication of that decision, and Plaintiff has not submitted
any controverting evidence.

Kean Dep., #16, Ex. D at pp. 54:15-

55:16.
Although in his affidavit (#17, Bleiweiss Affid., Ex.
C., made on April 10, 2014, months after his deposition on
December 17, 2013 and in conflict with it without the required

22

The Court observes that during his deposition,
Plaintiff conceded that once the new Taurus was returned to
Pandit, he took Panduit up on its offer to reimburse him for
mileage on his personal vehicle, which was the Trail Blazer SUV he
had been allotted previously and which he purchased when Pandit
switched to Ford Taurus sedans as its company cars. #17, Ex. a at
p. 107:5-11.
- 44 -

explanation for such disparities), Plaintiff states that he never
met with Kean, yet he previously testified during his deposition
that they spent two days together on a sales trip in Iowa and
Nebraska, during which Kean could observe Plaintiff making sales
calls.

During his deposition he also testified that between April

and September 2011 he took approximately 10-12 trips to the
corporate offices and personally saw Kean on those occasions.
#17, Ex. A at 121:25-122:23.

He also joined in “a few” phone

conferences with Kean. Id. at pp. 42:20-43:8.
Panduit,

even

if

Plaintiff’s

contradictory

Regardless, argues
statements

were

accurate, his declaration, filled with hearsay assertions, does
not and cannot defeat the assessment made by Kean on interactions
he

had

with

all

the

members of the team and his personal

assessment of Plaintiff’s skills.
Furthermore, Plaintiff cannot satisfy his burden to
present prima facie cases for age and disability discrimination
simply by asserting his subjective opinion of his skills or
qualifications.

Adeleke v. Dallas Area Rapid Transit , 487 Fed.

Appx. 901, 903 (5th Cir. Aug. 27, 2012)(“Adeleke’s subjective
opinions regarding his relative qualifications for the positions
are insufficient to establish that he clearly was better qualified
and that DART’s reason for not hiring him is a pretext for
discrimination.”), cert. denied, 134 S. Ct. 137 (2012); Jamerson
v. Bd. of Trustees, 662 F.2d 320, 324 (5th Cir. 1981).

Plaintiff

fails to show that retained younger employees were clearly less
qualified than he, and there is no evidence in the record of any

- 45 -

physical or mental impairments of any other Panduit employee to
demonstrate that others outside the protected group were treated
more favorably than he.
Indeed the absence of comparative evidence to show that
Plaintiff was treated less favorably than those outside of both
his protected categories is fatal to his prima facie cases and to
his claims.

Plaintiff’s evidence of age discrimination is limited

to his subjective view of his skills and the fact that two
individuals out of ten retained employees were under 40 years of
age.
one

He ignores the fact that another 58-year-old employee
of

three

reorganization.

and

employees over fifty were retained in the
Plaintiff failed to make a record showing whether

any of his co-employees were within or outside of a group with a
disability.

His disability claim is simply based on an inference

that because his request for a car allowance in October 2010 was
denied before Kean was hired, Kean’s decision to lay Plaintiff off
in the reorganization was based on his disability.
is insufficient to meet his burden on a
disability discrimination.

That inference

prima facie case of

Even if Plaintiff had established

prima facie cases of age and disability discrimination, he fails
to show that the reasons given by Kean were a pretext for
discrimination.
Court’s Decision
After a careful review of the briefs, the evidence in
the record, and the applicable law, the Court concurs with Panduit
for the reasons it states, demonstrating that Plaintiff has failed

- 46 -

to meet his burden of proof on summary judgment, that Panduit’s
motion should be granted.
Plaintiff fails to make a prima facie case of age or
disability

discrimination

in

his

layoff

reorganization of Panduit’s business.

in

the

course

of

a

Regarding both his age his

disability discrimination claims, Plaintiff fails to show that he
was qualified to assume one of the new positions (TSE or support
engineer) after the SSE positions were eliminated, or, in the case
of disability discrimination, that a reasonable accommodation
would allow him to be.23

He offers only subjective and conclusory

claims, but not evidence, that he was qualified by education,
experience and skills for the new positions of TSE and/or support
engineer

created

by

the

reorganization.

Although Plaintiff

conclusorily asserts that the SSE positions were not eliminated
and that Panduit merely changed the title and advertised for
applicants, Plaintiff fails to provide any evidence in support of
that contention, or, concomitantly, to show that he was replaced
by an identified, younger or nondisabled person who was performing
the same duties, and not more, than what Plaintiff had performed
as an SSE.

Nor has he shown that he was more qualified than those

23

The Court notes that neither Plaintiff nor Kean has
contended that the issue of an SUV versus a sedan is relevant to
Plaintiff’s inability to qualify as a TSE or support engineer, not
to mention that Plaintiff accepted Panduit’s offer of repayment of
his business travel expenses after Plaintiff’s purchase of the SUV
that had previously been allotted to him to use as a company
vehicle. An employee does not have the right to dictate his
preferred accommodation to an employer. Griffin, 661 F.3d at 224.
- 47 -

former SSEs and AE employees who were retained as TSEs or support
engineers.
In

contrast

Panduit

has

presented

uncontroverted

evidence demonstrating Kean’s reorganization plan, the need for
wider expertise in the newly created positions than the skill set
Plaintiff

brought

to his SSE job in the earlier regional

structure, and the criteria (including the survey that Plaintiff
chose not to complete) that Kean employed in deciding who of the
SSEs and AEs could meet the job requirements of a TSE and/or
support engineer.24
Even if Plaintiff had made the requisite prima facie
cases

of

age

and

disability discrimination, Panduit has

articulated a legitimate, nondiscriminatory reason for laying off
Plaintiff, i.e., that the RIF eliminated his and all SSE positions
and

that

Plaintiff

was

not

qualified

positions of TSE or support engineer.

for

the

newly

created

Plaintiff has not shown

that these reasons were unworthy of credence or a pretext for
discrimination.

If an individual cannot perform the essential

requirements of the job, the law does not require an employer to
reassign the employee to an occupied job, or to create a new job
for him, or to eliminate essential functions of the job, or to
assign existing employees or hire new employees to perform the
24

As noted earlier, despite Plaintiff’s claim that Kean
never met with him or had an opportunity to evaluate his
professional skills, Plaintiff’s own deposition testimony about
his disability being apparent on the business trip in Iowa and
Nebraska taken by Kean and himself undermines the veracity of his
assertion.
- 48 -

functions of the employee’s job that the employee could not
perform.

Wilkerson, 2014 WL 5282242 at *7, citing inter alia

Toronka v. Continental Airlines, Inc., 411 Fed. Appx. 719, 724 (5th
Cir. 2011).
Finally, the Court concurs with Panduit that the lack in
the record of evidence of comparators to show that Plaintiff was
treated less favorably than those outside the protected classes is
fatal to his claims.
Accordingly, for the reasons stated in this Opinion and
Order, the Court
ORDERS that Panduit’s motion for summary judgment is
GRANTED.

A final judgment will issue by separate order.
SIGNED at Houston, Texas, this

13th

day of

January ,

2015.

___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE

- 49 -