Holloway v. ITT Educational Services, Inc.
Filing
38
MEMORANDUM OPINION AND ORDER granting 18 Opposed MOTION for Summary Judgment, denying 28 Motion for Entry of Default Judgment. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
DEREK HOLLOWAY,
§
§
§
§
§
§
§
§
§
§
Plaintiff,
v.
ITT EDUCATIONAL SERVICES,
INC. ,
Defendant.
CIVIL ACTION NO. H-13-1317
MEMORANDUM OPINION AND ORDER
Plaintiff,
Derek
brings
Holloway,
this
defendant, ITT Educational Services, Inc.
action
against
("ITT"), for employment
discrimination based on disability in violation of the Americans
with Disabilities Act,
("ADA"),
the
Texas
as amended,
Commission
on
42 U.S.C.
Human
§
Rights
12111,
Act
et
seq.
("TCHRA" )
codified in Chapter 21 of the Texas Labor Code, and the Family and
Medical Leave Act
("FMLA"),
before
are
the
court
(Docket Entry No.
29 U.S.C.
Defendant's
§
2601,
Motion
for
et seq.
Pending
Summary
Judgment
18), and Plaintiff's Application to Clerk for
Default and Response to Defendant's Motion for Summary Judgment
(Docket Entry No. 28) in which plaintiff moves the court to enter
default judgment.
For the reasons set forth below,
plaintiff's
motion for entry of default judgment will be denied, ITT's motion
for summary judgment will be granted,
dismissed with prejudice.
and this action will be
I.
Plaintiff's Motion for Default Judgment
Citing Federal Rule of Civil Procedure 55 and the affidavit of
Craig
Keener,
judgment. 1
plaintiff
moves
the
court
for
entry
of
default
Plaintiff argues that
[t] his lawsuit was originally brought in state court
under the TCHRA, and was removed by ITT based upon
diversity jurisdiction.
Derek Holloway timely filed a
First Amended Complaint on September 6, 2013, adding
claims under the ADA and the FMLA.
ITT never answered
that amended complaint, and is in default.
Pursuant to Fed. R. Civ. P. 55(a)1 when a party
against whom a judgment for affirmative relief is sought
has failed to plead or otherwise defend, and that failure
is shown by affidavit or otherwise, the clerk must enter
the party/s default.
Because Derek Holloway/s damages are not for a sum
certain, after the clerk has entered a default against
ITT, Derek Holloway petitions the Court for a default
judgment.
Pursuant to Fed. R. Civ. P. 55(b) (2), Derek
Holloway requests that the Court conduct a hearing on
damages with proper notice to all parties and enter a
default judgment against ITT based upon the Court's
determination of damages. 2
Federal Rule of Civil Procedure 55 provides in pertinent part:
(a)
Entering a Default.
When a party against whom a
judgment for affirmative relief is sought has
failed to plead or otherwise defend
and that
failure is shown by affidavit or otherwise, the
clerk must enter the party's default.
l
IPlaintiff's Application to Clerk for Default and Response to
Defendant's Motion for Summary Judgment ("Plaintiff's Response"),
Docket Entry No. 28, 2.
2Id. at 1-2.
-2 -
(b)
Entering a Default Judgment.
C~erk.
If the plaintiff's claim is for
a sum certain or a sum that can be made
certain by computation, the clerk--on the
plaintiff's request, with an affidavit showing
the amount due--must enter judgment for that
amount and costs against a defendant who has
been defaulted for not appearing and who is
neither a minor nor an incompetent person.
(1)
By the
(2)
By the Court.
must apply
judgment.
to
In all other cases, the party
the court for a default
Neither default nor default judgment is appropriate in this action
because ITT is not
in default and has not failed to otherwise
defend the action.
This
action
was
originally
District Court of Harris County,
filed
Texas,
in
the
125th
on April 5,
Judicial
2013.
ITT
filed Defendant's Original Answer in the state court on May 6,
On May 7,2013,
court.4
ITT removed plaintiff's action to this
Pursuant to Rule 81 (c) (1),
the Federal Rules of Civil
Procedure "apply to a civil action after it is removed from a state
court.
II
Moreover,
"[a] fter removal,
unless the court orders it.1I
repleading is unnecessary
Fed. R. Civ. P. 81(c) (2)
Since ITT
answered plaintiff's original petition in state court, ITT did not
need to file an amended answer absent a court order.
3Defendant's Original Answer, Exhibit 2 to Notice of Removal,
Docket Entry No. 1-4.
4Notice of Removal, Docket Entry No.1.
-3-
On May
10,
2013,
the
court
issued
an
Order
for
Initial
Pretrial and Scheduling Conference to be held on July 19,
(Docket Entry No.2).
2013
Counsel for ITT participated in the pretrial
and scheduling conference held on July 19,
2013
(Docket Entry
At the scheduling conference the court entered a Docket
No.8) .
Control Order, pursuant to which motions to amend pleadings were
due by September 6,
2013,
plaintiff
2013
filed
(Docket Entry No.9) .
a
On September 6,
First Amended Complaint
(Docket
Entry
No. 12), but did not file a motion seeking leave to file an amended
complaint.
Since plaintiff neither sought nor obtained leave of
court to file an amended complaint, ITT was not required to file an
amended answer.
Even if plaintiff's first
amended complaint were properly
filed, default judgment would not be appropriate because ITT has
not "failed to . . . otherwise defend" the action.
55 (a) .
The clerk's
file
shows
that
Fed. R. Civ. P.
on October 21,
2013,
the
parties filed an Agreed Motion to Amend the Docket Control Order
seeking to extend the deadline for mediation (Docket Entry No. 13),
which the court granted on October 22, 2013 (Docket Entry No. 14).
On November 12, 2013, ITT filed its Designation of Experts (Docket
Entry No. 16), and on January 17, 2014, attorneys for both parties
filed a Rule 29 Agreement Regarding Discovery Responses pursuant to
which
the
discovery
deadline
requests
for
was
defendant's
extended
-4-
responses
(Docket
Entry
to
No.
plaintiff's
17).
On
February
24,
2014,
ITT
filed
Judgment
(Docket Entry No.
18)
the
i
pending
Motion
on March 20,
2014,
for
Summary
the parties
filed a Joint and Agreed Motion to Postpone Deadline for Filing
Joint
Pretrial
Order
Pending Ruling
Summary Judgment (Docket Entry No. 27)
on Defendant's Motion for
i
and on March 25, 2014, ITT
filed Defendant's Answer to Plaintiff's First Amended Complaint
(Docket Entry No. 31).
Because plaintiff neither moved for nor received the court's
permission to file an amended complaint, ITT's failure to file an
answer to the amended complaint prior to March 25, 2014, does not
consti tute a default.
Moreover,
as the court's review of
the
clerk's file in this case shows that the clerk has not entered
default, and ITT has not failed to defend itself in this action,
plaintiff's motion for entry of default judgment will be denied.
Since the pending motion for summary judgment and the plaintiff's
response thereto both treat Plaintiff's First Amended Complaint
(Docket Entry No. 12) as the live complaint, and since ITT has now
filed an Answer to Plaintiff's First Amended Complaint
(Docket
Entry No. 31), the court concludes that Plaintiff's First Amended
Complaint is the live complaint.
II.
ITT
Defendant's Motion for Summary Judgment
argues
that
it
is
entitled
to
summary
judgment
on
plaintiff's ADA and TCRRA claims because plaintiff is unable to
show that he was a qualified individual with a disability or that
-5-
the
legitimate l
non-discriminatory
reason
for
which
he
was
discharged was a pretext for disability-based discrimination.
ITT
argues that it is entitled to summary judgment on plaintiffls FMLA
claim because plaintiff is unable to cite evidence showing that he
was eligible to return to work when his FMLA leave expired. 5
A.
Standard of Review
Summary judgment is authorized if the movant establishes that
there is no genuine dispute about any material factI
Fed. R. Ci v. P. 56 (c) .
entitles it to judgment.
material
facts
are
"genuinel
if
the
and the law
Disputes about
evidence
is
such
that
a
reasonable jury could return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505
2511 (1986).
1
The
Supreme Court has interpreted the plain language of Rule 56(c) to
mandate the entry of summary judgment "after adequate time for
discovery and upon motion l against a party who fails to make a
showing
sufficient
to
establish
essential to that partyls case
s. Ct.
"must
fact
I
2548 1
2552
\ demonstrate
I
(1986).
existence
of
an
element
and on which that party will bear
l
the burden of proof at trial.
the
II
Celotex Corp.
v.
Catrett l
106
A party moving for summary judgment
the absence of a genuine
issue of material
but need not negate the elements of the nonmovant s case.
I
Little v.
(en banc)
Liquid Air Corp.
I
I
37 F.3d 1069
1
1075
(5th Cir.
II
1994)
(quoting Celotex l 106 S. Ct. at 2553-2554 (emphasis in
5Defendant / s Motion for Summary Judgment, Docket Entry No. 18
pp. 12 -18.
-6-
1
original)).
"If the moving party fails to meet this initial burden,
the motion must be denied, regardless of the nonmovant's response."
Id.
If,
requires
however,
the
the moving party meets this burden,
nonmovant
to go beyond the
pleadings
Rule 56(c)
and show by
affidavits, depositions, answers to interrogatories, admissions on
file,
or other admissible evidence that specific facts exist over
which there is a genuine issue for trial.
S. Ct.
at 2553-2554).
Id.
(citing Celotex, 106
In reviewing the evidence "the court must
draw all reasonable inferences in favor of the nonmoving party, and
it may not make credibility determinations or weigh the evidence."
Reeves v. Sanderson Plumbing Products, Inc., 120 S. Ct. 2097, 2110
(2000) .
Factual controversies are to be resolved in favor of the
nonmovant,
"but only when there is an actual controversy, that is,
when both parties have submitted evidence of contradictory facts."
Little, 37 F.3d at 1075.
"Moreover, the nonmoving party's burden is
not affected by the type of case; summary judgment is appropriate in
any case
'where critical
evidence
is
so weak or tenuous on an
essential fact that it could not support a judgment in favor of the
nonmovant. '"
Id.
(quoting Armstrong v. City of Dallas, 997 F. 2d 62,
67 (5th Cir. 1993)).
B.
Undisputed Facts
ITT hired plaintiff in July of 2009 to work as an Educational
Recruiting Representative at the Houston West Campus. 6
Plaintiff
6S ee Affidavit of Derek Holloway, Exhibit B to Plaintiff's
Response, Docket Entry No. 28-2. See also Employee Status Notice,
(continued ... )
-7-
reported
to
the
Director
of
Recruitment
1
and
his
job
duties
included identifying l interviewing l and facilitating enrollment of
prospective students in ITT/s programs of study.7
ITT recruiters
receive weekly Representative Plan Goals ("Plan") setting forth the
number of
tours l
(1) phone calls
("dials")
(4) conducted tours l
(2)
1
contacts l
(3)
scheduled
(5) applications l and (6) acceptances
they are expected to facilitate each week. 8
Plaintiff received several warnings that his performance fell
short of ITTI s expectations.
Plaintiff received his first "Written
Warningll for "Lack of Performance ll from his then-supervisorl Corey
Lewis l on August 171 2010.
The August 171 2010 1 Written Warning
states that plaintiff/s "application ll
rate was unacceptable and
that his actual rates of scheduling tours l conducting tours l and
acceptances
plaintiff
fell
short of his
received
a
"Final
Plan goals. 9
Written
Performance ll from his then-supervisor
1
On April
Warning
for
Mark Walker .10
61
2011 1
Lack
of
The April 6
1
2011 1 Final Written Warning states that plaintiff/s "scheduling"
and
"conducting ll
rates
fell
below
expectation
and
that
his
6( ••• continued)
Exhibit A to Defendant/s Motion for Summary Judgment l Docket Entry
No. 18-1.
7Job Description l Exhibit B to Defendant/s Motion for Summary
Judgment Docket Entry No. 18-2.
1
8Deposition of Derek Holloway ("Plaintiff/s Deposition")
Exhibit C to Defendant/s Motion for Summary Judgment l Docket Entry
No. 18-3 pp. 89-91.
1
1
9Id. at 94-96 and Exhibit 4 attached thereto.
l°Id. at 96-97 and Exhibit 5 attached thereto.
-8-
"cancellation ll
August
4,
rate
2011,
"Compliance
&
was
plaintiff
"mystery shopperll
inappropriate
the
topics
average. ll
department
received a
Ethics Violation ll
Houston's West Campus. 12
a
above
"Written Warning ll
from Cathy Clark,
On
for
a
Director of
This warning was based on feedback from
who reported that
plaintiff
while giving her a
tour
had discussed
of
the
campus. 13
Plaintiff denied the mystery shopper's allegations, but recalled
the counseling session with Clark at which he received a Written
Warning for directing a "mystery shopperll to review salaries at
websites such as salaries.com.l4
The current Director of Recruiting at Houston's West Campus,
Steven Lee ("Lee ll ) , counseled plaintiff for "Lack of Performance ll
on four occasions:
October 10, 2011; November 15, 2011; May 15,
2012; and August 16,2012. 15
told plaintiff
that
he
During each counseling session Lee
needed
to
efforts at meeting his Plan goals. 16
increase
his
activities
and
On October 2, 2012, Lee sent
an e-mail to his superior, Jeff Deaton, requesting permission to
llId. at 97.
12Id.
at 97-99 and Exhibit 6 attached thereto.
13Id. at 98.
l4Id. at 99.
15Id.
at 104-113 and Exhibits 7-10 attached thereto.
16Id.
at 105, 107-13.
-9-
discharge plaintiff for poor performance. 17
to issue a
"Final Written Warning"
Deaton instructed Lee
in lieu of discharge because
plaintiff's previous "Final Written Warning" had been issued more
than twelve months
earlier. 18
On October
5,
2012,
Lee
plaintiff a "Final Written Warning for Lack of Performance."
issued
This
Final Written Warning stated that plaintiff had started only four
students on a Plan of 15 in March of 2012, eight students on a plan
of
12
in June
of
2012,
and
two
students
on a
Plan of
13
in
September of 2012. 19
While employed by ITT plaintiff received three Performance
Planning and Evaluation Summaries
("PP&E")
that were prepared by
his immediate supervisors on an annual basis:
May 24, 2011; and June 5, 2012.
5,
The ratings were on a scale of 1 -
with 1 being the best score. 20
rating of 4 PP&Es, and 3 -
November 17, 2010;
Plaintiff received an overall
"Failed to Meet Expectations"
on the 2010 and 2011
"Met Expectations" - on the 2012 PP&E.21
17E-mail from Steven Lee to Jeff Deaton dated October 2, 2012,
Exhibi t B to Defendant's Reply to Plaintiff's Application for
Default and Response to Defendant's Motion for Summary Judgment
("Defendant's Reply"), Docket Entry No. 33-2. See also Deposition
of Ho Steven Lee, Exhibit A to Defendant's Reply, Docket Entry
No. 33-1, pp. 54:22-25,55:1-11,72:16-25.
18Plaintiff's Deposition, Exhibit C to Defendant's Motion for
Summary Judgment, Docket Entry No. 18-3, pp. 96-97, 114-16.
19Id. at 114 and Exhibit 11 attached thereto.
2°Exhibit E to Defendant's Motion for Summary Judgment, Docket
Entry No. 18-5.
21Exhibit D to Defendant's Motion for Summary Judgment, Docket
Entry No. 18-4.
-10-
After a routine physical in early October of 2012, plaintiff's
primary
care
physician
referred
him
to
a
urologist. 22
On
October 15, 2012, plaintiff was diagnosed with prostate cancer.23
On
the
same
day,
plaintiff
met
with
documentation regarding his diagnosis. 24
Lee about his diagnosis,
completing
an
Lee
and
provided
him
After his discussion with
plaintiff contacted The Hartford about
application
for
disability
leave,
and plaintiff
contacted ITT's Human Resources Department to inquire about medical
leave. 25
Plaintiff spoke with Natalie Hay
Manager of Benefits,
("Hay"),
ITT's
then
who provided him with FMLA paperwork and
submitted his application for approval. 26
ITT approved plaintiff
for a 12-week period of FMLA leave lasting from October 15, 2012,
through
January
7,
2013. 27
Hay
also
coordinated
plaintiff's
application for short-term disability ("STD") benefits, which The
Hartford approved and plaintiff received from October 22,
through
March
of
2013. 28
After
exhausting
his
STD
2012,
benefits,
plaintiff applied for and received long-term disability
("LTD")
22Plaintiff's Deposition, Exhibit C to Defendant's Motion for
Summary Judgment, Docket Entry No. 18-3, p. 27.
23Id. at 33.
25Id.
at 37.
26Id.
at 39-40.
27Id.
at 41-42 and Exhibit F attached thereto (FMLA approval
documents)
28Id.
at 44.
-11-
benefits from The Hartford,
which he was still receiving at the
time of his deposition on December 18, 2013, because his physician
had
not
yet
plaintiff
released
his
daily
him
to
return
exhaustion,
to
work. 29
inability
to
According
to
maintain
an
appropriate level of concentration, and frequent need to use the
bathroom have made it impossible for him to perform his job as an
Educational Recruiting Representative. 30
ITT
receives
census
data
for
each
of
its
campuses
on
a
quarterly basis and adjusts staffing in accordance with Resident
College Staffing Guidelines prepared by its Operations Department.
When quarterly census data requires a reduction of positions within
a department, selection of employees for inclusion in a reductionin-force
("RIF")
is
based
on
the
most
recent
PP&E
scores.
Employees who have been placed on Written Warning in the 12-month
period immediately preceding the RIF have an additional five points
added to their PP&E scores; employees who have been placed on a
Final Written Warning within that period have an additional ten
points added to their scores.
are selected for discharge.
value,
Employees with the highest scores
When two employees have the same point
tenure is used as the tie breaker. 31
29Id.
The fall
2012 RIF
at 45.
30Id. at 49-50.
31Declaration of Donna Smith, Exhibit H to Defendant's Motion
for Summary Judgment, Docket Entry No. 18-8, ~~ 3-7.
-12-
affected 165 employees at
91
ITT campuses. 32
The campus where
plaintiff worked was required to include three employees from its
Plaintiff - who had
recruitment department in the fall 2012 RIF.
the
highest
score
of
along
13
with
two
other
recruitment
department employees with scores of 8 and 6, as well as one other
employee from another department were discharged. 33
The RIF reduced
the number of recruiters at plaintiff's campus from 17 to 14.34
C.
Analysis
1.
Disability Discrimination Claims Under ADA and TCHRA
ITT
argues
that
it
is
entitled
to
summary
judgment
on
plaintiff's ADA and TCHRA claims because plaintiff is unable to
show that he was a qualified individual with a disability, or that
the
legitimate,
non-discriminatory
reason
for
which
he
was
discharged, i.e., a nationwide RIF, was a pretext for disabilitybased discrimination. 35
(a)
Applicable Law
Title I of the ADA prohibits discrimination against qualified
individuals on the basis of disability and requires employers to
32Id.
~
8.
33Id.
~
10.
34Exhibi t
000721.
C to Defendant's Reply,
Docket Entry No.
33,
ITT
35Defendant's Motion for Summary Judgment, Docket Entry No. 18,
pp. 13-18.
-13-
make reasonable accommodations for otherwise qualified disabled
employees.
42 U.S.C.
§
12112 (a);
§
12112 (b) (5) (A).
The ADA makes
it unlawful for an employer to discriminate against "a qualified
individual on the basis of disability.
42 U.S.C.
If
§
12112 (a) .
The ADA defines "qualified individual" as "an individual who, with
or without
reasonable accommodation,
can perform the essential
functions of the employment position that such individual holds or
desires."
42 U.S.C.
§
12111(8).
Disability is defined as:
"(A) a
physical or mental impairment that substantially limits one or more
major life activities of such individual;
impairment; or (C)
42 U.S.C.
§
(B) a record of such an
being regarded as having such an impairment."
12102 (1) (A) - (C).
See Milton v.
Texas Department of
Criminal Justice, 707 F.3d 570, 573 (5th Cir. 2013)
under
the
statute
includes
the
failure
to
Discrimination
make
reasonable
accommodations to the known physical or mental limitations of an
otherwise qualified individual, unless accommodation would impose an
undue hardship on the employer.
42 U.S.C.
§
12112(b) (5) (A).
The ADA, its implementing regulations, and the EEOC's
interpretative guidance make clear that an employer's
obligation to provide a 'reasonable accommodation,' when
triggered,
contemplates
changes
to
an
employer's
procedures, facilities, or performance requirements that
will permit a qualified individual with a disability to
perform the essential functions of his or her job.
Burch v. Coca-Cola Co., 119 F.3d 305, 314 (5th Cir. 1997).
Under
the ADA a reasonable accommodation may include:
(A)
making existing facilities used by employees readily
accessible
to
and
usable
by
individuals
with
disabilities; and
-14-
job restructuring,
part-time or modified work
schedules, reassignment to a vacant position, acquisition
or modification of equipment or devices, appropriate
adjustment or modifications of examinations, training
materials or policies, the provision of qualified readers
or interpreters, and other similar accommodations for
individuals with disabilities.
(B)
42 U.S.C.
The
§
12111(9).
Fifth Circuit
follows
the burden-shifting evidentiary
framework articulated by the Supreme Court in McDonnell-Douglas
Corp. v. Green,
93 S. Ct.
1817
(1973),
for analyzing employment
discrimination claims asserted under the ADA.
See Gowesky v.
Singing River Hospital Systems, 321 F.3d 503, 511 (5th Cir. 2003).
Plaintiff's initial burden is to establish a prima facie case of
discrimination based upon his disability by showing
disabled,
(2) he was qualified for the job,
(1)
he
is
(3) he was subjected to
an adverse employment action because of his disability, and (4) he
was
replaced
employees.
by
Id.
or
treated
less
favorably
than
See also Milton, 707 F.3d at 573
non-disabled
(quoting Daigle
v. Liberty Life Ins. Co., 70 F.3d 394, 396 (5th Cir. 1995)).
plaintiff
establishes
a
prima
facie
case
of
If a
disability-based
discrimination, the burden shifts to the employer to articulate a
legitimate, non-discriminatory reason for its actions.
Gowesky,
321 F.3d at 511; Daigle, 70 F.3d at 396.
Once the employer articulates a legitimate, nondiscriminatory
reason for
shifts
the adverse
back
upon
the
employment action at
plaintiff
who
may
issue,
prove
the burden
intentional
discrimination by proceeding under one of two alternatives:
-15-
the
pretext
alternative
Pinkerton v.
curiam)
or
Spellings,
the
mixed-motives
529 F.3d 513,
519
alternative.
(5th Cir.
See
2008)
(per
("Under a plain reading of the statue, and in accord with
the position of other circuits, we conclude that the ADA does not
require 'sole causation.'
The proper causation standard under the
ADA is a ' motivating factor' test.
/I)
.36
See also Rachid v. Jack in
the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004)
"mixed-motives"
analysis
used
in
Title
VII
(holding that the
cases
is
equally
applicable in cases brought under anti-discrimination statutes such
as the Age Discrimination in Employment Act which - like the ADA prohibits discrimination
Title
VII's
"motivating
broader
factor"
"because of"
prohibition
for
of
age
instead of employing
discrimination
an employment practice).
alternative involves "offer [ing]
that
is
a
The pretext
sufficient evidence to create a
genuine [dispute] of material fact that [the] defendant's reason is
36Subsequent to Pinkerton, 529 F.3d at 513, the Supreme Court
ruled that the mixed-motives alternative is unavailable in the
similarly-worded discrimination provision in the Age Discrimination
in Employment Act ("ADEN'). See Gross v. FBL Financial Services,
Inc., 129 S. Ct. 2343 (2009).
Gross held that the mixed-motives
argument was unavailable because, among other reasons, the ADEA's
relevant provision prohibits discrimination "because of" age
instead of
employing
Title
VII's
broader
prohibition of
discrimination that is a "motivating factor" for an employment
practice. Id. at [174-76]. See also University of Texas Southwest
Medical Center v. Nasser, 133 S. Ct. 2517 (2013) (holding that the
mixed-motive argument is not available in the context of a
Title VII retaliation claim, which must be proved according to
traditional principles of but-for causation). The court need not
decide whether the mixed-motive analysis is available under the ADA
because, even assuming arguendo that it is, ITT is entitled to
summary judgment.
-16-
not true, but is instead a pretext for discrimination."
376
F.3d
plaintiff
at
Under
312.
must
offer
the
mixed-motives
sufficient
evidence
to
Rachid,
alternative,
create
a
the
genuine
dispute of material fact "that the defendant's reason, while true,
is only one of the reasons for its conduct, and another 'motivating
factor'
is the plaintiff's protected characteristic."
also Maples v. University of Texas Medical Branch at Galveston, 524
F. App'x 93, 95 (5th Cir. 2013)
(applying the "motivating factor"
standard in analyzing motion for summary judgment filed in an ADA
employment discrimination action)
If the employee offers evidence
capable of proving that discrimination was a motivating factor in
the employment decision, the burden shifts to the employer to prove
that it would have taken the same action despite the discriminatory
animus.
Rachid,
376
F.3d
at
312.
See
also
Richardson
v.
Monitronics International, Inc., 434 F.3d 327, 333 (5th Cir. 2005)
(analyzing FMLA retaliation claim under modified McDonnell-Douglas
scheme endorsed by the Fifth Circuit in Rachid, 376 F.3d at 305).
"Although intermediate evidentiary burdens shift back and forth
under this framework,
trier
of
fact
that
'[t] he ultimate burden of persuading the
the
defendant
intentionally
discriminated
against the plaintiff remains at all times with the plaintiff.'"
Reeves, 120 S. Ct. at 2106 (quoting Texas Department of Community
Affairs v. Burdine, 101 S. Ct. 1089, 1093
Like the ADA,
§
(1981».
21.105 of the Texas Labor Code allows an
employer to be held liable for discrimination because of or on the
-17-
-----_._
.....
_._..-
._----
basis of a disability that does not impair an individual's ability
to
reasonably
perform
(characterizing
"an
a
Texas
job.
unlawful
employment
Labor
Code
action"
21.051
§
and
adverse
employment action taken by an employer because of an individual's
"disability").
735, 739
See Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d
(Tex. 2003)
(TCHRA case stating that" [t] he Legislature
intended to correlate state law with federal
law in employment
discrimination cases when it enacted the TCHRA") .
"In discrimi-
nation cases that have not been fully tried on the merits,
courts]
apply
the
burden-shifting
United States Supreme Court."
analysis
[Texas
established by
the
Canchola, 121 S.W.3d at 739 (citing,
inter alia, Reeves, 120 S. Ct. at 2097, and McDonnell-Douglas, 93
s. Ct . at 1817).
TCHRA,
Texas
"Given the similarity between the ADA and the
courts
'look
to
analogous
guidance when interpreting the Texas Act.'"
federal
precedent
for
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)).
Thus, plaintiff's TCRRA claim is subject to the same analysis as is
his ADA claim.
(b)
Id.
Application of the Law to the Undisputed Facts
(1)
Plaintiff Fails to Establish a Prima Facie
Case by Establishing that Be Is a Qualified
Individual with a Disability.
ITT argues that plaintiff's ADA and TCRRA claims are subject
to
summary
judgment
because
plaintiff
was
not
a
qualified
individual when he was discharged on October 23, 2012, because he
-18-
was unable to perform the essential functions of his job as an
Educational Recruiting Representative.
The parties do not dispute
that when he was discharged plaintiff was being treated for cancer
or
§
that
cancer
constitutes
1630.2(j) (3) (iii)
a
disability.
See
29
C.F.R.
(including cancer in list of impairments that
will almost always impose a substantial limitation on a major life
act i vi t y).
A" 'qual i f ied individual' means an individual who, wi th
or without
reasonable accommodation,
can perform the
essential
functions of the employment position that such individual holds or
desires."
42 U.S.C.
§
12111(8).
To avoid summary judgment on the
question of whether he was a qualified individual, plaintiff must
"I)
show:
job
in
"that he could perform the essential functions of the
spite
of
his
disability,
or
2)
that
a
reasonable
accommodation of his disability would have enabled him to perform
the essential functions of the job."
Corp., 101 F.3d 1090, 1093
Turco v. Hoechst Celanese
(5th Cir. 1996) (per curiam)
Crossley v. CSC Applied Technologies, L.L.C.,
2014 WL 2119156, *2
(5th Cir. May 22, 2014)
See also
F. App'x - - ,
(per curiam) .
The undisputed evidence establishes that plaintiff's position
of Educational Recruiting Representative required him to identify,
interview,
and facilitate enrollment of prospective students in
ITT's programs of study.37
Plaintiff testified that the essential
functions of his job required him to make a certain number of phone
37Job Description, Exhibit B to Defendant's Motion for Summary
Judgment, Docket Entry No. 18-2.
-19-
------_
..... _.. _...
_--_...._ ..
_---
calls
every day,
campus
where
he
schedule
prospective
worked,
give
applicants
presentations
to
to
visit
the
prospective
applicants, lead prospective applicants on campus tours, and talk
with
prospective
applicants
regarding
their
financial
Plaintiff also testified that his daily exhaustion,
needs. 38
inability to
maintain an appropriate level of concentration, and frequent need
to use the bathroom have made it impossible for him to perform the
essential
functions
Representative
of
his
job
from October 15,
as
2012,
an
Educational
the
day he
Recruiting
notified his
supervisor of his diagnosis and need for treatment, until at least
the day of his deposition, December 18, 2013. 39
Plaintiff
argues
that
he
was
nevertheless
a
qualified
individual because he testified throughout his deposition that he
could do jobs with a reasonable accommodation. 40
In pertinent part
plaintiff testified:
Q.
Were you able to work from October 12th - excuse me
- October 2012 through March of 2013?
A.
Can you repeat that again?
Q.
Yeah.
I'm just curious.
Were you able -- while
you were on short-term disability from October 2012
through March of 2013, were you able to work, or
was it a situation where you could not work?
38Plaintiff's Deposition, Exhibit C to Defendant's Motion for
Summary Judgment, Docket Entry No. 18-3, pp. 47, 89-91.
39Id. at 46-47, 49-50.
4°Plaintiff's Response, Docket Entry No. 28, p. 14 (citing
Plaintiff's Deposition, Docket Entry No. 30, pp. 46 and 51).
-20-
MR. KEENER: Objection.
Vague.
You can answer.
A.
If the - if the right position in the right job, I
guess I - I probably could have worked.
Q.
What - what position or job do you think you could
have worked during that period?
A.
Something other than what I was doing.
Q.
For example, what do
performed, what job?
A.
I don't know.
Q.
So as you sit here today, you don't know of a job
that you could have worked from October 12th - from
October 2012 through March of 2013?
A.
No, I don't know.
Q.
You don't know of any; is that correct?
A.
Correct. 41
you
think
you
could
have
I don't have an answer.
Plaintiff also testified:
Q.
Given your prostate cancer and the fact that you
have been on - you're on LT - long-term disability
benefits, are there any jobs that you can identify
right
today, as you sit here, that you can
perform?
A.
Probably
anything
outside
sales
flexible, allows me time, basically,
make my own schedule.
Q.
How many hours a week could you work?
A.
Probably like 20.
Q.
And again,
is it the concentration and the
urination and the
the same issues that would
interfere with you working a full-time job?
where
it's
I guess, to
41Plaintiff's Deposition, Docket Entry No. 30, p. 46:1-24.
-21-
-------
~~-------.---
A.
Yes, pret ty much. 42
Plaintiff testified further:
. Are you seeking reinstatement with your job
Q.
at ITT?
A.
No.
Q.
Is it fair to say you couldn't perform your old
job?
A.
I wouldn't want myoId job.
Q.
I understand.
But could you perform it even if you
wanted it?
A.
Not on a full-time basis, no.43
Plaintiff's argument that he was a qualified individual for
purposes of the ADA because he could perform jobs with a reasonable
accommodation has no merit because plaintiff has failed to present
any evidence that he ever requested a reasonable accommodation.
See Burch, 119 F.3d at 314.
Telephone Co.
I
See also Burden v. Southwestern Bell
L.P., 183 F. App'x 414, 417 (5th Cir. 2006)
(citing
Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 735-36 (5th Cir. 1999)
(noting
process
Nor
that
ll
has
an
employee
must
participate
in
an
"interactive
with the employer to arrive at a suitable accommodation)) .
plaintiff
presented
any
evidence
of
a
reasonable
accommodation that would have allowed him to perform the essential
42Id. at 51: 6-19.
43Id. at 160:14-22.
-22-
functions
of
either
his
job
as
an
Educational
Recruitment
Representative or of any other job available at ITT.
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, 119 F.3d at 314.
An employee who fails either to request a
reasonable accommodation or to identify an accommodation that would
have allowed him to fulfill the essential requirements of his own
job or of a job that was otherwise available,
fails to state a
cognizable claim of disability-based discrimination.
Plaintiff's
testimony
that
he
was
unable
Id.
to
perform
the
essential functions of his position as an Educational Recruiting
Representative
October 15,
from
2012,
December 18,
2013,
the
until
day
at
he
was
diagnosed
least
the
date
conclusively establishes
of
with
his
Consequently,
plaintiff
has
failed
deposition,
that he was not
qualified individual on the date of his discharge,
2012.
cancer,
a
October 30,
to present
evidence
capable of establishing a prima facie case of discrimination based
on disability, and plaintiff's claim that his discharge constituted
disability discrimination in violation of the ADA and the TCHRA
fails as a matter of law.
F.3d
615,
621
(5th Cir.
See Burch v. City of Nacagdoches, 174
1999)
("The ADA does
not
require
an
employer to relieve an employee of the essential functions of his
or her job,
modify those duties,
reassign existing employees to
-23-
---------.~ ~-~-
---
---
perform those jobs, or hire new employees to do
SO.II)
Gober v. Frankel Family Trust, 537 F. App'x 518, 521-22
2013)
See also
(5th Cir.
(affirming grant of summary judgment for employer in an ADA
case where evidence showed that plaintiff could not perform an
essential function of his job); Hammond v. Jacobs Field Services,
499 F. App'x 377, 382 (5th Cir. 2012)
(2)
(same).
Plaintiff Fails to Raise a Fact Issue on
Either Pretext or Mixed-Motives Alternative.
ITT also argues that it is entitled to summary judgment on
plaintiff's ADA and TCHRA claims because plaintiff was discharged
as part of a nationwide RIF that occurred in the fall of 2012 as a
result of a quarterly census that required ITT to reduce staffing
at ninety-one campuses,
position
for
economic
discriminatory reason
Eliminating a
including plaintiff's.44
reasons
for
during
a
RIF
is
a
discharging an employee.
valid,
See
nonEqual
Employment Opportunity Commission v. Texas Instruments Inc.,
F.3d 1173, 1181
(5th Cir. 1996)
Co., 952 F.2d 119, 123
100
(citing Walther v. Lone Star Gas
(5th Cir. 1992)
("Lone Star has offered a
valid, non-discriminatory explanation for Walther's discharge:
he
was part of a reduction in force in which employees were laid off
based on their performance records.
II
)).
Accordingly, ITT has met
its burden to produce evidence of a legitimate, nondiscriminatory
reason for plaintiff's discharge.
44Defendant's Motion for Summary Judgment, Docket Entry No. 18,
p. 16.
-24-
In response to ITT's proffered legitimate, nondiscriminatory
reason for his discharge, plaintiff argues only that the timing of
his discharge - within fifteen days of notifying his supervisor,
Lee, of his cancer diagnosis and need for treatment - is capable of
Plaintiff argues:
raising a fact issue for trial.
ITT refused to fire Derek Holloway ten days before he was
diagnosed with prostate cancer, and fired him within
fifteen days of learning that he had prostate cancer. If
Derek Holloway was a bad employee, why wasn't he fired on
October 5,
2012,
before ITT knew of his cancer
45
diagnosis.
Citing Baumeister v. AIG Global Investment Corp., 420 F. App'x 351,
356
(5th Cir.
2011),
plaintiff argues that
\\ [t]hese facts meet
Plaintiff's burden that Defendant's stated reasons are pretext, and
that a motivating factor in his termination was his disability."46
ITT argues that plaintiff was selected for inclusion in the
RIF based on objective criteria of poor performance - not because
of his cancer or need for cancer treatment.
In support of this
argument ITT has presented undisputed evidence that the RIF was
nationwide,
that
the
decision
to
eliminate
three positions
in
plaintiff's department was made before plaintiff notified Lee of
his diagnosis and need for treatment, that the decision regarding
which employees to eliminate was based on objective performance
criteria
diagnosis
that
were
and need
made
for
before
plaintiff
treatment,
and
notified Lee
that
plaintiff
45Plaintiff's Response, Docket Entry No. 28, p. 15.
46rd.
-25-
of
his
had
the
highestl i.e.
1
worst l score of any of the employees at his campus
selected for inclusion in the RIF.
Plaintiff has failed to point
to any evidence that would permit a reasonable juror to find that
ITTls proffered reasons for discharging him were not true and were
l
in factI pretexts for discrimination based on disability.
Assuming the mixed-motives argument remains viable for an ADA
discrimination claim l plaintiff has failed to point to evidence
that would enable a reasonable jury to find that his disability was
a motivating factor in ITTls decision to include him in the Fall
2012 RIF.
To be a motivating factor discrimination "must actually
playa role in the employerls decision making process and have a
determinati ve influence on the outcome.
519.
Pinkerton l 529 F.3d at
II
Moreover l under a mixed-motive framework the employer can
defend against liability by showing that it would have taken the
same action in the absence of any alleged discriminatory animus.
Rachid
l
376 F.3d at 312; Richardson l 434 F.3d at 333.
Here
l
the
undisputed evidence is that ITTls decisions to initiate the RIFI to
include four employees from plaintiffls campus
I
including three
from plaintiffls department l had been made by October 51 2012 - ten
days before October 151 2012 1 the date plaintiff notified Lee of
his
cancer
obj ecti ve
individual
diagnosis
performance
employees
and
need
criteria
to
be
for
that
treatment.
ITT
included
in
used
the
Moreover
to
I
identify
RIF
were
the
the
also
established before ITT was informed of plaintiffls diagnosis and
need for treatment.
Plaintiffls score of 13 - which undisputedly
-26-
placed him at the top of the list for discharge - was based on his
2012 PP&E score of three points received on June 5, 2012, plus an
additional
ten points
for his having received a
Final Written
Warning on October 5, 2012.
Because plaintiff did not notify Lee
or
his
anyone
else
at
ITT
of
diagnosis
and
need
for
cancer
treatment until October 15, 2012, neither his cancer nor his need
for
cancer
treatment
determinative
could
influence
on
have
the
played
outcome
a
of
role
ITT's
or
had
decision
a
to
initiate the RIF or to include him in the RIF's implementation.
Plaintiff's reliance on Baumeister, 420 F. App'x at 356, is
misplaced because in that case the Fifth Circuit held that temporal
proximity between employee's pregnancy leave and her discharge
alone
was
not
sufficient
to
establish
that
the
employer's
legitimate, non-discriminatory reason for discharge - RIF - was a
pretext
for
discrimination.
Administrative Review Board,
562,
569
n.21
(5th Cir.
See
U.S.
2011)
Ameristar
Airways,
Department of Labor,
("Although carrying
Inc.
v.
650 F.3d
significant
weight, temporal proximity standing alone is not enough to sustain
the
plaintiff's
ultimate
burden.").
Close
timing
between
an
employee's protected activity and an adverse action against him may
provide the causal connection required to make out a prima facie
case.
But once the employer offers a legitimate, nondiscriminatory
reason that explains both the adverse action and the timing, the
plaintiff must offer some evidence from which the jury may infer
that discrimination was the real motive.
-27-
Rachid, 376 F.3d at 312;
Richardson,
at
Plaintiff
333.
has
offered no
such evidence.
Moreover, the court concludes that any inference of discrimination
arising from the temporal proximity of plaintiff's discharge to his
notifying ITT of his cancer diagnosis is overcome by the undisputed
evidence
that
plaintiff
would
have
been
discharged
from
his
position as an Educational Recruiting Representative during the RIF
that occurred in the fall
of 2012
due to his history of poor
The court concludes therefore that plaintiff has
performance.
failed to raise a genuine issue of material
presenting
conclude
evidence
that
including him
credence,
otherwise
from which
ITT's
in
the
a
reasonable
legitimate,
Fall
2012
fact
for trial by
fact-finder
nondiscriminatory
RIF
is
untrue
could
reason
for
or unworthy of
or that ITT's decision to include him in the RIF was
motivated
by
discrimination
based
on
disability.
Accordingly, ITT's motion for summary judgment on plaintiff's ADA
and TCHRA claims will be granted.
2.
Family and Medical Leave Act
Plaintiff alleges that ITT willfully discriminated against him
and interfered with his rights under the FMLA by discharging him
while
he
was
on
FMLA-covered
leave.
Plaintiff
alleges
that
" [f]iring an employee while on FMLA [leave] interferes with Derek
Holloway's right to be reinstated at the end of his FMLA leave,
p. 4
47Plaintiff's First Amended Complaint,
~ 23.
-28-
Docket Entry No.
1147
12,
and that U[f]iring an employee because he took an FMLA leave is
prohibited by the
FMLA. ,,48
ITT argues
that
it
is
entitled to
summary judgment on plaintiff's FMLA claim because plaintiff cannot
show
that
its
legitimate,
discharge
inclusion
interfering
with
in
non-discriminatory
a
nationwide
plaintiff's
RIF
entitlement
reason
was
to
for
his
pretext
for
FMLA
leave.
Alternatively, ITT argues that it is entitled to summary judgment
on plaintiff's FMLA claim because plaintiff was not released for
work when his FMLA leave period expired, and because when plaintiff
was deposed on December 18, 2013, plaintiff was still not able to
perform the essential functions of his job. 49
(a)
The
FMLA
Applicable Law
allows
eligible
employees
working
for
covered
employers to take temporary leave for medical reasons without risk
of losing their employment.
See 29 U.S.C.
§
2601 (b) (1)
and (2) .50
The FMLA contains both prescriptive and proscriptive provisions
which, together, seek both to accommodate the legitimate interests
of employers and to meet the needs of employees and their families.
48Id.
~
24.
49Defendant's Motion for Summary Judgment, Docket Entry No. 18,
p. 12.
50The FMLA applies to private-sector employers with fifty or
more employees.
29 U.S.C. § 2611(4) (A) (i).
An employee who has
worked for a covered employer for at least 1250 hours during the
preceding twelve months is eligible for FMLA leave.
29 U.S.C.
§ 2611 (2) (A).
ITT does not dispute either that it is a covered
employer or that plaintiff was eligible for FMLA leave.
-29-
See Hunt v. Rapides Healthcare System, LLC, 277 F.3d 757, 763 (5th
Cir. 2001).
Prescriptive provisions of the FMLA allow an eligible
employee to take up to twelve weeks of unpaid leave to care for
himself if the employee suffers from a serious health condition
that makes the employee unable to perform the functions of his
position.
of
a
rd. (citing 29 U.S.C.
qualified
leave
2612 (a) (1))
§
period
the
.51
employee
At the conclusion
is
entitled
to
reinstatement to his former position, or to an equivalent one, with
the same terms and benefits.
29 U.S.C.
provisions
it
of
the
FMLA make
§
Proscriptive
2614 (a) .
"unlawful
for
any employer
to
interfere with, restrain, or deny the exercise of or the attempt to
exercise, any right provided under" the FMLA.
29 U.S.C.
2615 (a) .
§
The FMLA provides a private right of action against employers
who violate its provisions.
29 U.S.C.
right
after
to
return
to
work
his
substantive right under the statute.
29
C.F.R.
§
825.214 (a).
Authority of Harris County,
51
29 U.S.C.
§
See
§
Plaintiff's claimed
qualified
See 29 U.S.C.
Mauder
Texas,
2617.
v.
absence
§
2614(a) (1)
Metropolitan
446 F.3d 574,
580
a
i
Transit
(5th Cir.
2612 (a) (1) provides in relevant part that
[A]n eligible employee shall be entitled to a total of 12
workweeks of leave during any 12-month period for one or
more of the following:
(D) Because of a serious health condition that makes the
employee unable to perform the functions of the position
of such employee.
-30-
is
2006).
See also McArdle v. Dell Products, L.P., 293 F. App'x 331,
334 (5th Cir. 2008)
("An employer's failure to restore an employee
to the same or equivalent position gives rise to an entitlement
claim under 29 U.S.C.
2615(a) (1) .ff)
§
Nero v. Industrial Molding
i
Corp., 167 F.3d 921,926-27 (5th Cir. 1999)
(distinguishing claims
alleg-ing a failure to reinstate from claims alleging retaliatory
discharge following FMLA leave)
731
F.3d
342,
348-51
(5th
i
Cuellar v. Keppel Amfels, L.L.C.,
Cir.
2013)
(Elrod,
J.,
concurring)
(discussing substantive differences between FMLA claims based on
allegations of interference with entitlement
to FMLA leave and
retaliation for having exercised FMLA rights) .
Here,
plaintiff
states
that
his
FMLA
claim
is
not
a
retaliation claim but, instead, a claim for interference with his
entitlement to FMLA leave. 52
To establish a prima facie interference case, [plaintiff]
must show that (1)
[]he was an eligible employee,
(2)
[ITT]
was an employer subject to the FMLA's
requirements, (3) []he was entitled to leave, (4) []he
gave proper notice of [his] intention to take FMLA leave,
and (5) [ITT] denied [him] benefits to which []he was
entitled under the FMLA.
Lanier v.
Uni versi ty of Texas Southwestern Medical
F. App'x 312,
316
(5th Cir. 2013)
667 F.3d 757,
761
(6th Cir.
element:
Center,
(citing Donald v. Sybra,
2012)).
527
Inc.,
At issue is only the fifth
whether ITT denied plaintiff benefits to which he was
entitled under the FMLA.
52See plaintiff's Response, Docket
En t
-31-
------_ _ _._----....
..
ry No. 28 , p. 9 .
The right to FMLA leave is not unlimited.
An employee is not
entitled to "any right, benefit, or position of employment other
than any right, benefit, or position to which the employee would
have been entitled had the employee not
U.S.C.
§
2614 (a) (3) (B).
taken the leave.
/I
29
An employer who denies reinstatement bears
the burden of showing "that an employee would not otherwise have
been employed at the time reinstatement is requested./I
§
825.216(a).
29 C.F.R.
If an employer states a legitimate reason for not
reinstating an employee
following a
period of
FMLA leave,
the
employee must present evidence sufficient to raise a jury question
that
the
employer's
pretextual.
stated reason for not
reinstating him was
Shirley v. Precision Castparts Corp.,
682-83 (5th Cir. 2013)
726 F.3d 675,
("[D]enying an employee the reinstatement to
which he is entitled generally violates the FMLA,
[but]
denying
reinstatement to an employee whose right to restored employment had
already been extinguished - for legitimate reasons unrelated to his
efforts to secure FMLA leave - does not violate the Act./I).
(b)
Application of the Law to the Facts
Citing Nero,
167
F.3d
at
927,
plaintiff
argues
that
ITT
violated rights guaranteed by the FMLA when it discharged him while
he was on FMLA leave and failed to reinstate him at the end of his
12-week leave period.
Plaintiff argues
Derek Holloway was approved for FMLA leave, and he was on
FMLA leave when he was terminated. (Holloway affidavit) .
He was entitled to twelve weeks of job protection, he
-32-
didn' t get one week.
(Holloway affidavit).
He was
entitled to continued benefits for twelve weeks.
(Holloway affidavit). His benefits were cancelled after
one week when he was being treated for cancer. (Holloway
affidavit).
ITT's only defense is that they now claim
that Derek Holloway lost his job due to a reduction in
force.
(Lee 78/23).
However, a reasonable jury could
not believe ITT.
ITT refused to fire Derek Holloway
three weeks earlier, before it knew of his cancer
diagnosis and need for an FMLA leave.
(Lee 75/10)
Steven Lee, the person who supplied the information that
led to Derek Holloway's termination, knew all about Derek
Holloway's cancer diagnosis and need to take an FMLA
leave when Seven Lee put together information to get him
terminated.
(Lee 78/23). Fourteen other recruiters did
not lose their jobs.
A jury could conclude that the
reason Derek Holloway lost his job and his benefits was
because he got sick and need[ed] to take an FMLA leave.
This creates a fact issue which precludes summary
judgment in this matter. 53
The undisputed evidence establishes that plaintiff's discharge
in the nationwide RIF that ITT implemented in the fall of 2012 was
based solely on obj ecti ve criteria,
i . e.,
his most recent PP&E
score and points associated with the Final Written Warning that Lee
gave him on October
5,
2012.
This
evidence
establishes
that
plaintiff's most recent PP&E score of three points was established
on June 5, 2012, a date that was over four months before he applied
for
FMLA leave
on October 15,
2012.
The undisputed evidence
establishes that the Final Written Warning that added ten points to
plaintiff's score was prepared and given to plaintiff on October 5,
2012, ten days before he applied for FMLA leave.
The evidence also
establishes that plaintiff's combined score of 13 was higher than
53Id.
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any other Educational Recruiting Representative at his campus, and
that two other recruiters with better scores were also included in
Moreover,
the RIF.
plaintiff does not dispute
that
ITT's RIF
scoring system was objective, that his score of 13 qualified him
for discharge in the RIF, or that his score of 13 was established
before
he
sought
FMLA
The
leave.
undisputed
evidence
also
establishes that plaintiff's FMLA leave expired in January of 2013,
and that at that time plaintiff's physicians had not released him
to return to work, and he was not capable of performing essential
functions of his job as an Educational Recruitment Representative.
Nevertheless, quoting Nero, 167 F.3d at 927, plaintiff argues
that "[t]he only question in such cases is 'whether the plaintiff
has established by a preponderance of the evidence,
entitled to the benefit he claims.,"s4
that he is
But for reasons explained
in Shirley,
726 F.3d at 682-83,
plaintiff's reliance on Nero is
misplaced.
In Shirley the Fifth Circuit explained
[t]hat an employee is not guaranteed an absolute right to
reinstatement following a qualified absence is not only
"a matter of common sense [,]
but also a principle
reflected in this circuit's pattern jury instructions,
and in the opinions of a significant majority of other
circuit courts.
II
Id.
at
682-83
Instructions
Third,
54
& nn.31-34
(Civil)
Fourth,
§
Sixth,
(citing
11.10.2 (B) (8)
Seventh,
Fifth
Circuit
(2009),
Eighth,
I d . at 8 - 9 .
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._----_._------------
and
Pattern
Jury
and cases from the
Eleventh
Circuits
(citations omitted)).
The Fifth Circuit explained that its opinion
in Nero, 167 F.3d at 921, is not to the contrary:
There, having accepted that [29 U.S.C.] § 2614(a) (3)
provides an employee only those rights to which he would
have been entitled had he not taken leave, we noted that,
because reinstatement was an FMLA entitlement, "the
employee
[was]
due the benefit if the statutory
requirements [were] satisfied, regardless of the intent
of the employer.
A few district courts have
interpreted the italicized phrase as imposing a strict
liability
standard,
requiring
employers,
in
all
circumstances, to reinstate employees after returning
from FMLA leave.
these courts misread Nero.
Shirley, 726 F.3d at 682 (citations omitted) .
/I
The Fifth Circuit explained that
[i]t is true that an employer may not fail to reinstate
an employee following his return from FMLA leave, but
only i f the statutory requirements have been satisfied.
Among those requirements is one dictating that an
employee must actually be entitled to the position to
which he seeks reinstatement, 29 U.S.C. § 2614 (a) (3) i and
an employer may challenge that entitlement by offering
evidence that the employee would have lost his position
even had he not taken FMLA leave t 29 C.F.R. § 825.216(a).
Thus, although denying an employee the reinstatement to
which he is entitled generally violates the FMLA, denying
reinstatement to an employee whose right to restored
employment had already been extinguished - for legitimate
reasons unrelated to his efforts to secure FMLA leave does not violate the Act.
Although we might have been
clearer in Nero, we in fact considered the employerts
reasons for terminating the employee, which, of course t
would have been unnecessary had those reasons been
irrelevant.
To avoid summary judgment in a case such as this where the
defendant employer states a legitimate cause for not reinstating an
employee following a period of FMLA leave, i.e.
t
discharge during
a nationwide RIF and inability to perform essential functions of
-35-
~~~~
._------------- ----
his job,
plaintiff must present evidence sufficient to raise a
genuine issue of material fact for trial that ITT's stated reasons
for failing to reinstate him are pretextual.
to
do
so.
Plaintiff
has
offered
no
This plaintiff fails
evidence
of
pretext.
Plaintiff's allegations and evidence are insufficient to survive
summary judgment on his FMLA claim,
as no reasonable jury could
find that he was denied reinstatement for any reason other than
ITT's stated reasons, i.e., shortly after he began is FMLA leave,
plaintiff was discharged as part of a nationwide RIF, and when his
FMLA leave expired his physicians had not released him to return to
work,
and according to his own testimony he was not capable of
performing
essential
functions
Recruitment Representative.
of
his
job
as
an
Educational
Accordingly, the court concludes that
ITT is entitled to summary judgment on plaintiff's FMLA claim.
III.
Conclusions and Order
For the reasons explained above in
entry of
default
§
I, Plaintiff's motion for
judgment asserted in Docket
Entry No.
28
is
DENIED.
For the reasons explained above in
§
II, Defendant's Motion
for Summary Judgment (Docket Entry No. 18) is GRANTED.
SIGNED at Houston, Texas, on this 28th day of August, 2014.
UNITED STATES DISTRICT JUDGE
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