Weed v. Sidewinder Drilling Inc.

Filing 43

OPININON AND ORDER DENYING SUMMARY JUDGMENT as to 24 MOTION for Summary Judgment. (Signed by Judge Melinda Harmon) Parties notified.(rhawkins)

United States District Court
Southern District of Texas

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JASON WEED,

§
§
§
§
§
§
§
§
§

Plaintiff,
VS.
SIDEWINDER DRILLING, INC.
Defendant.

ENTERED
March 29, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. H-14-1658

OPINION AND ORDER DENYING SUMMARY JUDGMENT
Pending before the Court in the above referenced cause,
alleging disability discrimination, retaliation, and failure to
accommodate in violation of the Americans With Disabilities Act of
1990 (“ADA”), as amended, 42 U.S.C. § 12101, et seq., is Defendant
Sidewinder Drilling, Inc.’s (“Sidewinder’s”) motion for summary
judgment (instrument #24).
In his response (#31 at p.11 n.84) to the motion for summary
judgment,

Plaintiff

Jason

Weed

(“Weed”)

states

that

he

is

nonsuiting his accommodation claim with prejudice, so the Court
dismisses it with prejudice.
Standard of Review
Summary judgment under Federal Rule of Civil Procedure 56(c)
is appropriate when, viewing the evidence in the light most
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.”
-1-

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).
Where the nonmovant bears the burden of proof at trial,
the movant must offer evidence that undermines the nonmovant’s
claim or point out the absence of evidence supporting essential
elements of the nonmovant’s claim; the movant may, but does not
have to, negate the elements of the nonmovant’s case to prevail on
summary judgment.”

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).

“A complete failure of proof concerning an essential

element of the nonmoving party’s case necessarily renders all other
facts immaterial.”

Celotex, 477 U.S. at 323.

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 renders all other
facts immaterial.”
not

rely

merely

Celotex, 477 U.S. at 323.
on

allegations,
-2-

denials

The nonmovant may
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).
Conclusory

allegations

preclude summary judgment.

unsupported

by

evidence

will

not

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.’”
Fifth

Circuit

Id., quoting Liberty Lobby, 477 U.S. at 252. The

requires

probative evidence.’”

the

nonmovant

to

submit

“‘significant

Id., quoting In re Municipal Bond Reporting

Antitrust Litig., 672 F.2d 436, 440 (5th Cir. 1978), and citing
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

granted.”

significantly

summary

judgment

may

be

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

Cir. 1999), citing Celotex, 477 U.S.
477 U.S. at 249-50.
-3-

at 322, and Liberty Lobby,

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).

The nonmovant must “go beyond the pleadings and by

[his] own affidavits, or by depositions, answers to interrogatories
and admissions on file, designate specific facts showing that there
is a genuine issue of material fact for trial.”

Giles v. General

Elec. Co., 245 F.3d 474, 493 (5th Cir. 2001), citing Celotex, 477
U.S. at 324.
The court must consider all evidence and draw all inferences
from

the

nonmovant.

factual

record

in

the

light

most

favorable

to

the

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. The Court may not make credibility
determinations. Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir.
2009), citing Turner v. Baylor Richardson Medical Center, 476 F.3d
337, 343 (5th Cir. 2007).
Complaint’s Factual Allegations
According to his conclusory complaint, Weed, age 31 when this
suit was filed on June 13, 2014, began working for Sidewinder in
June 2012, initially in Houston building an oil rig, and from
-4-

August 29, 2012 until February 2013 as a Derrick Hand 21 on a rig
in Williston, North Dakota.

On February 16, 2013, on a bathroom

break during his shift, Weed noticed blood in his urine.2
notified his supervisor, rig manager

Weed

Steven Hayes (“Hayes”), who

purportedly walked away without acknowledging Weed’s concern.

A

safety hand, Joshua Ransonet (“Ransonet”), was called, and he took
Weed to the emergency room at Mercy Medical Center in Williston,
North Dakota.

Weed and the safety hand were told by the doctor

that Weed had a large mass on his kidney and should have a CAT
scan.

The doctor told Weed to call a neurologist on Monday.

The

safety, who was in communication with Hayes throughout this period,
asked the doctor if Weed could return to work.

Weed was given

permission by the physician to return to the oil rig, provided that
Weed be placed on light duty.
The next day Weed gave Hayes a letter from the doctor stating
that Weed was to be restricted to light duty.

Weed told Hayes that

the doctor had told him that the mass on Weed’s kidney could be
cancer.

Weed was placed on light duty on February 17 and 18, 2013,

teaching and supervising another Derrick Hand to do his job.

On

February 18, 2013 Hayes terminated Weed from working on the rig,

1

Or “Derrickman” in Sidewinder’s parlance.

2

During Weed’s deposition, he testified that earlier, in
January of 2013, while at work, he experienced abdominal pain,
and the same safety hand who later took him to the emergency room
on February 16th, took him to see a doctor. #26, Ex. A, 79:1080:12.
-5-

allegedly for overflowing the trip tank and spilling fifteen
barrels of mud that day when he changed the trip out valves.

Weed

objects that he did not change any trip out valves because it was
not his responsibility when he was on light duty.
assigned to run the TM80.3

Instead he was

Even though Sidewinder was aware that

Weed was not responsible for the mud spill, Weed claims that
Sidewinder terminated him because it was known Weed had cancer or
was perceived by Sidewinder to have cancer.

Weed went home to

Delta, Colorado and underwent a CAT scan, which confirmed that the
large mass on his kidney was cancer and that it was likely he would
have to undergo surgery.

Subsequently he had his kidney removed.

Weed alleges that Sidewinder discriminated against him on the
basis of his disability or perceived disability with malice or
reckless indifference by terminating him from his job.
also allegedly retaliated against him.

Sidewinder

Weed asserts that based on

information and belief, similarly situated employees at Sidewinder
were treated differently, and that Weed suffered damages as a
result of Defendant’s discriminatory conduct.
Weed claims that he is a person with a disability as defined
by the ADA: one who has the requisite skill, education, experience
and other job-related requirements necessary to perform with or
without accommodation the essential functions of his job at the
time of termination.

Weed claims he was disabled or viewed as

3

Hayes explained that a TM80 is “a hydraulic pipe wrench.”
#26, Ex. B, 48:3-13.
-6-

disabled by Sidewinder.
“qualified

individual

While employed by Sidewinder, Weed was a
with

a

disability,”

was

a

qualified

individual with a record of disability, and/or was regarded by
Defendant as a person with a disability under the ADA. Weed claims
he was terminated as a direct result of his disability or perceived
disability,

a

physical

impairment

that

limited

a

major

life

activity under the statute, and/or perceived disability.
Sidewinder’s Motion for Summary Judgment and Brief (#24 & 25)
Sidewinder argues that Weed was a “subpar employee” whose
incompetence

resulted

in

“two

careless

and

mistakes that caused spills of oil-based mud.”

nearly

identical

#25 at p. 1.

It

claimed that such a spill could harm the health and safety of
employees,

risk

damage

to

environmental contamination.

the

rig

equipment,

and

cause

The first spill occurred in November

2012, and Weed was given oral counseling by then rig manager Billy
Pitts (“Pitts”).

Nevertheless Weed’s work allegedly continued to

be substandard, and Weed caused a second spill in February 2013.
After that spill Sidewinder removed Weed from the rig, the human
resources department investigated both spills, and Sidewinder
terminated Weed.
As for Weed’s alleged disability, Sidewinder states that
Weed’s doctor found a cyst on Weed’s kidney two days before Weed
caused the second spill. Only after Weed was terminated did Weed’s
doctors determine that the cyst was cancerous.

Nobody, including

Weed and his doctors, knew that Weed had cancer at the time he was
-7-

discharged, insists Sidewinder.
Applicable Law:

the ADA

Title I of the Americans with Disabilities Act (“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 of his job
unless the accommodation would impose an undue hardship on the
employer. When an employee’s disability is not open or apparent to
the employer, the plaintiff or his health provider bears the burden
to identify the disability and its resulting limitations.

Taylor

v. Principal Fin. Group, 93 F.3d 155, 165 (5th Cir. 1996).
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, § 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.”
“qualified

individual

with

individual with a disability

a

disability”

is

defined

as

A
“an

who, with or without reasonable
-8-

accommodation,

can

perform

the

essential

functions

of

the

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

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.”4

See Sutton v.

United Airlines, Inc., 527 U.S. 471 (1999) and

Toyota Motor

Manufacturing v. Williams, 534 U.S. 184 (2002), both of which were
subsequently

overturned

by

the

ADA

Amendments

§2(b)(5), 122 Stat. 3553, 3558 (“ADAAA”).

Act

of

2008,

Sutton, holding 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),
required a court to take into account the ameliorative effects of

4

Courts look to two possible authorities for interpreting
the terms of § 12101: the regulations interpreting the
Rehabilitation Act of 1973, 87 Stat. 361, as amended, 29 U.S.C. §
706(8)(B)(1988), and the EEOC regulations construing the ADA.
EEOC v. Chevron Phillips Chemical Co., LP, 570 F.3d 606, 614 n.4
(5th Cir. 2009), citing Toyota Motor Mfg., Ky., Inc. v. Williams,
534 U.S. 184, 193 (2002). The Rehabilitation Act, which
prohibits discrimination based on disability by recipients of
federal funds, is a precursor to the ADA on which Congress relied
in drafting the ADA and about which Congress specified, “Except
as otherwise provided in this chapter, nothing in this chapter
shall be construed to apply a lesser standard than the standards
applied under Title V of The Rehabilitation Act of 1973 (29
U.S.C. §§ 790 et seq.) or the regulations issued by Federal
agencies pursuant to such title.” Chevron Phillips, 570 F.3d at
614 n.5.
-9-

mitigating measures in determining whether there was a disability,5
while Toyota narrowly construed and strictly interpreted the term
“disability.”6
To state a claim under subsection A, a plaintiff must allege
that she has a physical or mental impairment.
C.F.R. § 1630.2(g).

§ 12102(2)(A); 29

A “physical impairment” is “any physiological

disorder or condition, cosmetic disfigurement, or anatomical loss
affecting one or more of the following body systems: neurological;
musculoskeletal;

special

sense

organs;

respiratory,

including

speech organs; cardiovascular; reproductive, digestive, genitourinary; hemic and lymphatic, skin; and endocrine.”

29 C.F.R. §

1630.2(h)(1).
Simply having an impairment is insufficient to make one
disabled under the statute; a plaintiff must also show that the
impairment substantially limits a major life activity.

Chevron

Phillips, 570 F.3d at 614, citing Toyota Motor, 534 U.S. 184, 195

5

In Sutton, 527 U.S. at 482, the Supreme Court opined,
“[I]f a person taking measures to correct for, or mitigate, a
physical or mental impairment, the effects of those measures–both positive and negative--must be taken into account when
judging whether that person is ‘substantially limited’ in a major
life activity and thus ‘disabled’ under the [ADA].”
6

In Toyota the Supreme Court held that “major life
activities” include “activities that are of central importance to
daily life,” and they are “substantially limited” when the
impairment “prevents or severely restricts the individual from
doing activities that are of central importance to most people’s
daily lives.” The limitation had to “be permanent or long-term.”
534 U.S. at 198, citing 29 C.F.R. § 1630.2(j). Moreover
“substantially limits” must be construed “strictly to create a
demanding standard for qualifying as disabled.” Id. at 197.
-10-

(2002).

The implementing regulations in § 1630.2(I) provides a

non-exhaustive list of major life activities, which include “caring
for oneself, performing manual tasks, walking, seeing, hearing,
speaking,

breathing,

learning,

and

walking.”

29

C.F.R.

§

1630.2(I); id. Moreover, “to be substantially limited means to be
unable to perform a major life activity that the average person in
the

general

population

can

perform

or

restricted in the ability to perform it.”
1630.2(j).

to

be

significantly

Id., citing 29 C.F.R. §

In deciding whether a person is “substantially limited

in a major life activity, the

Equal Employment Opportunity

Commission (“EEOC”) advised that courts should consider:

‘(I) the

nature and severity of the impairment, (ii) the duration or
expected duration of the impairment; and (iii) the permanent or
long term impact, or the expected permanent or long term impact of
or resulting from the impairment.’”

Id. at 614-15, citing 29

C.F.R. § 1630.2(j). “[W]hether an individual is disabled under the
ADA . . . remains an individualized inquiry.”
The

Id. at 620.

ADA was amended by the Americans with Disabilities Act

Amendments Act of 2008 (“ADAAA”), which by its express language
became effective on January 1, 2009, while the final regulations
issued by the EEOC became effective on May 25, 2011.
16978, 16999 (2011).

76 Fed. Reg.,

“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.”

Louis

P. DiLorenzo, The Intersection of the FMLA and ADA--As Modified by
-11-

NDAA, ADAAA and GINA, 860 PLI/Lit 47, 83-84 (June 23, 2011); 29
C.F.R. § 1630.1(c)(4)(“reinstating a broad scope of protection
under the ADA”; “the definition of ‘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).

The ADAAA directs that “substantially limits” should not be as
strictly construed as some courts have required in the past and
should not require “extensive analysis.”
2008, §2(b)(5), 122 Stat. 3553, 3558.

ADA Amendments Act of

The ADAAA has added “major

bodily functions” (e.g., the immune system, normal cell growth,
[emphasis

added

disability]

by

the

digestive,

Court
bowel,

relating

to

Weed’s

purported

bladder,

neurological,

brain,

respiratory, circulatory, endocrine, and reproductive functions) to
the ADA’s list of major life activities, including caring for
oneself,

performing

manual

tasks,

seeing,

hearing,

eating,

sleeping, standing, sitting, reaching, lifting, bending, reading,
concentrating, thinking, communicating, and working, while defining
“physical or mental impairment” as any physiological disorder or
condition, cosmetic disfigurement or anatomical loss affecting one
or more body systems, as well as mental or psychological disorder.
ADA Amendments Act of 2008, Pub. L. No. 110-325, §§ 4, § 3(2)(A)
-12-

and (B), 122 Stat. 3553, 3555.
Moreover, while retaining the basic definition of disability
under the ADA (“a physical or mental impairment that substantially
limits one or more major life activities”), “disability” now
includes an impairment that is episodic or in remission if it would
substantially limit a major life activity when active; examples
include epilepsy, hypertension, asthma, diabetes, major depression,
bipolar disorder, schizophrenia, and cancer7 (emphasis by this
Court).

ADA Amendments Act of 2008, §§ 4, § 3(4)(D), 122 Stat.

3553, 3555; 29 C.F.R. § 1630(j)(5).

An impairment lasting less

than six months can be substantially limiting.
1630.2(j)(1)(ix).

29 C.F.R. §

An impairment that is in remission but may

return in a substantially limiting form is a disability under the
ADAAA.

29 C.F.R. § 1630.2(j)(1)(vii).

7

The ADAAA also amended

Cancer is listed as an impairment because it
“substantially limits [the major life activity] of normal cell
growth.” 29 C.F.R. § 1630.2(j)(3)(iii). Norton v. Assisted
Living Concepts, 786 F. Supp. 2d 1173, 1186 (N.D. Tex. 2011)
(citing as examples in the legislative history of the ADAAA where
Congress named cancer is the kind of impairment that would
qualify as a disability: 2011 WL 1060575, at 17007, 17011, and
17012). Thus what under the ADA the “regarded as having such an
impairment” prong of the disability definition “was interpreted
to mean that an employer had to regard or perceive an individual
as substantially limited in a major life activity,” under the
new provision in the ADAAA an individual satisfies the
requirement if he “establishes that the employer discriminated
against him because of an actual or perceived impairment,
‘whether or not the impairment limits or is perceived to limit a
major activity.’” Schmitz v. Louisiana, Civ. A. No. 07-891-SCR,
2009 WL 210497, at *2 (M.D. La. Jan. 27, 2009). In other words,
under the new provision “the defendant’s perception of
plaintiff’s impairment is not relevant to whether the plaintiff
is disabled under the ‘regarded as’ prong. Id. at *3.
-13-

Toyota’s definition of “major life activity” as “activities that
are of central importance to most people’s daily lives,” instead
indicating that the word “major” must “not be interpreted strictly
to create a demanding standard for disability.”

29 C.F.R. §

1630.2(i)(2). Under the ADAAA, tasks involving major life activity
of manual tasks, such as fine motor coordination, grasping, or
pressuring, “need not constitute activities of central importance
to most people’s lives.”

Appendix to Part 1630, Interpretive

Guidance on Title I of the Americans With Disabilities Act §
1630.2(I); 76 Fed. Reg. at 17008.

To be “substantially limiting”

an impairment does not have to prevent or significantly restrict a
person from performing a major life activity.

Id.

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, § 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
-14-

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.
When only indirect or circumstantial evidence is available, a
plaintiff alleging a violation of the ADA must meet the burdenshifting framework of McDonnell Douglas.8

Chevron Phillips, 570

F.3d at 615, citing McInnis v. Alamo Community College Dist., 207
F.3d 276, 279 (5th Cir. 2000).

8

McDonnell Douglass Corp. v. Green, 411 U.S. 792
(1973)(first, plaintiff in a Title VII case creates a presumption
of intentional discrimination by establishing a prima facie case;
second, if he succeeds the burden shifts to the employer to
articulate a legitimate, nondiscriminatory reason for its
challenged employment decision; third, if the employer meets this
burden, the plaintiff must show (a) that the employer’s reason is
not true, but a pretext for discrimination, or (b) the
defendant’s reason, though true, is only one reason for its
conduct and that another factor is the plaintiff’s protected
characteristic (mixed motive alternative)). The last element,
known as the mixed motive rule, was developed in Title VII cases,
and the Fifth Circuit has recognized that “the ADA is part of the
same broad remedial framework as . . . Title VII, and that all
the anti-discrimination acts have been subjected to similar
analysis” as to burden of proof. Miller v. Public Storage Mgmt.,
Inc., 121 F.3d 215, 218 (5th Cir. 1997). Nevertheless the
question arose after the Supreme Court’s decision in Gross v. FBL
Financial Services, Inc., 557 U.S. 167, 175 (2009)(holding that
the mixed motives theory is unavailable under the Age
Discrimination in Employment Act of 1967, 29 U.S. § 621, et.
seq.).
The Fifth Circuit has questioned whether the Supreme Court’s
recent decision in Gross v. FBL Financial Services, Inc., 129 S.
Ct. 2343, 2349 (2009) makes the mixed motive framework
unavailable to plaintiffs alleging discrimination outside of
Title VII. See, e.g., Wilson v. Noble Drilling Services, Inc.,
No. 10-20129, 405 Fed. Appx. 909, 912 (5th Cir. Dec. 23,
2010)(based on distinct statutory texts, holding that motivating
factor test does not apply to FMLA, while Title VII explicitly
authorizes such an approach in Title VII).
-15-

In a key decision for the instant disability discrimination
action, EEOC v. LHC Group, Inc., 773 F.3d 688, 695-97 (5th Cir.
2014), the Fifth Circuit clarified the elements of a prima facie
case required to show the nexus between an employee’s disability or
perceived disability and his termination.

The panel observed that

in the past it consistently required a plaintiff to prove that (1)
he has a disability (or is perceived as having a disability) and
(2) he is qualified for the job he held.

Id.

at 695, citing Zenor

v. El Paso Healthcare System, Ltd., 176 F.3d 847, 853 (5th Cir.
1999). From the Zenor test the case law splits into three separate
lines concerning the causal nexus:

(1) one line requires the

employee to prove that he was subject to an adverse employment
decision on account of his disability.”
695, citing id.

LHC Group, 773 F.3d at

A second line of case law requires the plaintiff

to prove that he was “subject to an adverse employment action . .
. and . . . he . . . was replaced by a nondisabled person or was
treated less favorably than non-disabled employees.”

Id., citing

Burch v. Coca-Cola Co., 119 F.3d 305, 320 (5th Cir. 1997).

The

third line requires the plaintiff to prove that he was subject to
an adverse employment action because of his disability and he was
replaced by or treated less favorably than non-disabled employees.
Id., citing E.E.O.C. v. Chevron Phillips Chemical Co., LP, 570 F.3d
606, 615 (5th Cir. 2009), citing McGinness v. Alamo Comm. College

-16-

Dist., 207 F.3d 276, 279 (5th Cir. 2000).9
The Fifth Circuit panel in LHC Group went on to point out,
“‘It is a well-settled Fifth Circuit rule of orderliness

that one

panel of our court may not overturn another panel’s decision,
absent an intervening change in the law, such as by statutory
amendment, or the Supreme Court, or our en banc court.’”

Id.,

quoting Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378
(5th Cir. 2008).

The LHC Group panel then held that the earliest

test articulated in Zenor controls (requiring “the employee to show
that he was subject to an adverse employment decision on account of
his disability”) because it was “first used in the disabilitydiscrimination context in Chiari v. City of League City, 920 F.2d
311, 315 (5th Cir. 1991)(interpreting Rehabilitation Act of 1973,
29 U.S.C.A. § 794(a), the ADA’s predecessor).

In contrast, the

second formulation (that he was replaced by or treated less
favorably than non-disabled employees) was first used in the
disability-discrimination context in Daigle v. Liberty Life Ins.
Co., 70 F.3d 396 (5th Cir. 1995), four years after Chiari.
Furthermore, this second line of the Daigle test “was likely
imported from McDonnell Douglas--a case focused on discriminatory
hiring, not termination,” and required as part of the prima facie
case that after the plaintiff is rejected for the job, he must show

9

The panel rejected the third line because it requires
plaintiffs to prove causation twice, as well as the reason it
rejected the second, discussed supra in the text. 733 F.3d at
696.
-17-

that “the position remained open and the employer continued to seek
applicants from persons of complainant’s qualifications.” 411 U.S.
792, 802 (1973).

The LHC Group panel explained, “In the McDonnell

Douglas context, where the employer and the applicant have only a
handful of interactions before the allegedly discriminatory hiring
decision is made, the subsequent history of the open position is
highly relevant to a finding of discrimination. By contrast, where
termination is at issue, plaintiffs may draw on their employment
history to prove a nexus between their protected trait and their
termination.”

LHC, 773 F.3d at 696.

The panel noted that its

decision was in accord with those of its sister Circuits, “which
have overwhelmingly required plaintiffs to prove their termination
was because of their disability rather than provide evidence of
disfavored treatment or replacement.”

Id.

The Fifth Circuit has

reiterated the holding of LHC Group a number of times subsequently.
See, e.g., Delaval v. PTech Drilling Tubulars, LLC, 824 F.3d 476,
479-80 (5th Cir. 2016); Clark v. Boyd Tunica, Inc.,

Fed. Appx.

, No. 16-60167, 2016 WL 7187380 (5th Cir. Dec. 9, 2016); Rodriguez
v. Eli Lilly and Co., 820 F.3d 759, 765 (5th Cir. 2016); Benson v.
Tyson Foods, Inc., Civ. A. No. 4:14-cv-00121, 2016 WL 3617803, at
*6 (E.D. Tex., July 6, 2016).
approved

by

the

panel

for

In sum, the prima facie case
a

disability-discrimination-in-

termination claim under the ADA arises from the Zencor

line of

cases, which requires a plaintiff to allege and show (1) he has a
disability; (2) he was qualified for the job; and (3) that he was
-18-

subject to an adverse employment on account of his disability. 773
F.3d at 697.

See Zenor, 176 F.3d at 853.

Thus there is no

necessity for comparators under this test.
If the plaintiff succeeds, the burden shifts to the employer
to articulate a legitimate, non-discriminatory reason for its
adverse employment action.

Id. at 701-02.

Once the employer has

done so, the presumption of discrimination dissolves, and “the
issue

becomes

discrimination

vel

non.”

Reeves

v.

Sanderson

Plumbing Prods., 530 U.S. 133, 142 (2000). The plaintiff must show
either that the employer’s reason is not true, i.e., is pretextual,
or that the defendant’s reason while true, is only one reason for
its conduct and another motivating factor is the plaintiff’s
protected characteristic, which under the ADA is his disability or
perceived disability.

LHC Group, 773 F.3d at 702; Rachid v. Jack

in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004).
As noted, however, there is disagreement and uncertainty
whether or not mixed motives are viable under the ADA in light of
the Supreme Court’s decision in Gross.

Clark, 2016 WL 7187380, at

*3 n.4 (citing LHC Group, 773 F.3d at 702 (applying mixed-motives
alternative

without

addressing

Gross),

with,

e.g.,

Lewis

v.

Humboldt Acquisition Corp., Inc., 681 F.3d 312, 318-21 (6th Cir.
2012)(en banc)(concluding that mixed motives claims are not viable
under the ADA in light of Gross).

The

trier of fact can consider

any evidence presented in the prima facie case and any other
evidence

the

plaintiff

presents
-19-

to

show

that

the

employer’s

articulated
pretextual.

reason
Id.

for

the

adverse

employment

action

was

“Pretext is established ‘either through evidence

of disparate treatment or by showing that the employer’s proffered
expectation is false or ‘unworthy of credence.’‘”

Delaval, 824

F.3d at 480, citing Laxton v. Gap, Inc., 333 F.3d 572, 578 (5th Cir.
2003).10

“At summary judgment, ‘[e]vidence demonstrating that the

employer’s explanation is false or unworthy of credence, taken
together with the plaintiff’s prima facie case, is likely to
support

an

inference

of

discrimination

evidence of the defendant’s true motive.’”

even

without

further

LHC Group, 773 F.3d at

702.
A claim of unlawful retaliation under the ADA, as under Title
VII, requires a plaintiff to make a prima facie case by showing
that (1) he engaged in an activity protected by the ADA, (2) he
suffered an adverse employment action, and (3) there is a causal
connection between the protected act and the adverse action.
Seaman v. CSPH, 179 F.3d 297, 301 (5th Cir. 1999), cited for that
proposition in Tabatchnik v. Continental Airlines, 262 Fed. Appx.

10

Sidewinder cites two cases that hold that the comparator
element is still required for a prima facie case under the ADA:
Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 230 (5th
Cir. 2015), and Flanner v. Chase Inv. Servs. Corp., 600 Fed.
Appx. 914, 916, 922 (5th Cir. 2015). The Court finds that the
language in LHC Group is quite clear about the change in the law,
and the two cases cited by Sidewinder were issued later and fail
to follow the “Fifth Circuit rule of orderliness that one panel
of our court may not overturn another panel’s decision, absent an
intervening change in the law, such as by statutory amendment, or
the Supreme Court, or our en banc court.’” Jacobs, 548 F.3d at
378.
-20-

674, 676 (5th Cir. Jan. 30, 2008).

If the plaintiff succeeds, the

employer must present a legitimate, non-discriminatory reason for
the retaliatory adverse employment action.
301.

If

the

employer

succeeds,

the

Seaman, 179 F.3d at

plaintiff

must

present

sufficient evidence showing that the employer’s proffered reason is
a pretext for discrimination and that but for the protected
activity, the adverse action would not have occurred.

Id.

With regard to retaliation claims, the Fifth Circuit has ruled
that under the ADA as amended by the ADAAA, an individual who is
“regarded

as

disabled,”

but

who

does

not

actually

have

a

disability, only has to show that the disability substantially
limited him in an action prohibited by the statute, and no longer
that the disability substantially limited him in a major life
activity.

Garner v. Chevron Phillips Chemical Co., LP, 834 F.

Supp. 2d 528, 539 (S.D. Tex. 2011).

The employer does not have to

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

“A claim of unlawful retaliation under the

ADA, as under Title VII, requires a plaintiff to make a prima facie
case by showing that (1) he or she engaged in an activity protected
by th ADA, (2) he or she suffered an adverse employment action, and
(3) there is a causal connection between the protected act and the
adverse action.”

Id. at 540.

If he does so, the employer must

provide a legitimate, nondiscriminatory reason for the retaliatory
adverse employment action; if he does, “the plaintiff must present
sufficient evidence showing that the employer’s proffered reason is
-21-

a pretext for discrimination and the plaintiff must show that but
for the protected activity, the adverse action would not have
occurred.”

Id.

“To prevail on a claim of retaliation, “‘[c]lose

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 of retaliation.’”

Id. at 541, citing

Dooley v. Parks and Recreation for Parish of East Baton Rouge, No.
10-31254, 2011 WL 2938080, *3 (5th Cir. July 22, 2011), citing
Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997),
citing Armstrong v. City of Dallas, 997 F.2d 62, 67 (5th Cir. 1993).
“‘[T]he mere fact that some adverse action is taken after an
employee engages in some protected activity will not always be
enough for a prima facie case.’”

Id., citing

Roberson v. Alltel

Info. Servs., 373 F.3d 647, 655 (5th Cir. 2004)(quoting Swanson, 110
F.3d

at

1188

n.3).

“However,

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 retaliation was the real motive.”
Id., citing Swanson, 110 F.3d at 1188 n.3, and Roberson v. Alltel
Info. Servs., 373 F.3d 647, 656 (5th Cir. 2004)(“Without more than
timing

allegations,

and

based

on

Alltel’s

legitimate,

nondiscriminatory reason in this case, summary judgment in favor of
Alltel was proper.”).

“‘[T]he mere fact that some adverse action

is taken after an employee engages in some protected activity will
not always be enough for a prima facie case.’”
-22-

Id., citing

Roberson,

373

F.3d

at

655.

“‘[O]nce

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 retaliation was the real motive.’”
Id., citing Roberson, 373 F.3d at 656.

For a retaliation claim

under the ADA, in contrast to one under Title VII, the plaintiff
does not have to show that he suffers from an actual disability,
but only that he has “a reasonable good faith belief that the
statue has been violated. . . . Where he has a good faith belief .
. . that he is perceived as disabled, making a request for a
reasonable accommodation under the ADA may constitute engaging in
a protected activity.”

Garner, 834 F. Supp. 2d at 541, citing

Tabatchnik, 262 Fed. Appx. at 676 & n.1 (failure to prove a
disability

does

not

preclude

the

plaintiff

from

pursuing

a

retaliation claim), and 423 U.S.C. § 12112(b)(5)(A).11
Weed contends that Sidewinder denied Weed’s request for a
reasonable accommodation at his job and failed to engage in the
interactive process in good faith. Subsequent to Weed’s complaints

11

The statute suggests as reasonable accommodations “(A)
making existing facilities used by employees readily accessible
to and usable by individuals with disabilities; and (B) 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.” Feist v. Louisiana Dept. of
Justice, Office of the Attorney General, 730 F.3d 450, 453 (5th
Cir. 2013), quoting 42 U.S.C. § 12111(9).
-23-

of being treated differently, he endured retaliation and adverse
employment actions, including termination.

In turn, Weed asserts

that the discrimination and retaliation caused Weed to suffer
severe emotional distress, lost wages, lost raises, lost seniority
and retirement benefits, mental anguish, loss of enjoyment of life,
and other benefits.
Sidewinder’s Motion for Summary Judgment (#24, 25, 26)
First, Sidewinder argues that Weed cannot establish a prima
facie case of ADA discrimination because (1) he cannot show he was
terminated because of his disability; (2) Weed cannot demonstrate
that he was replaced by a non-disabled employee, nor that he was
treated less favorably than a non-disabled employee12; and (3)
Sidewinder had a legitimate, non-discriminatory reason to discharge
Weed, and Weed has no evidence that this reason is pretext.
Second, Weed fails to establish a prima facie case of ADA
retaliation because (1) Weed did not engage in a protected activity
because he did not have a good faith belief that he was disabled or
was seen as disabled when he asked for an accommodation; and (2)
Sidewinder had a legitimate, non-discriminatory reason to terminate
Weed, and Weed has no evidence that the reason was pretext.
Sidewinder describes Weed’s duties as a derrickman:

12

working

As noted, the Fifth Circuit has rejected the element of
being replaced by or treated less favorably than a non-disabled
person for making a prima facie case of disability
discrimination. E.E.O.C. v. LHC Group, Inc., 773 F.3d at 695-97,
citing Zenor, 176 F.3d at 853.
-24-

on the moneky board, pulling drilling pipe, inserting drilling pipe
into the elevators, attaching pipe to the traveling block during
tripping activities and being responsible for the drilling mud and
the tanks, including overseeing mud pumps, shale shakers, gas
buster, and trip tanks.

#26, Ex. C, Affidavit at ¶3 of Sidewinder

People Development Manager, Wendy Mitchell; Ex. B at 13:22-14:3,
Dep. of Jeffrey Steven Hayes (“Hayes”), rig manager on Rig 103 in
North Dakota and Weed’s supervisor in February 2013.
maintains

that

Weed,

in

his

capacity

as

a

Sidewinder

derrickman,

was

responsible for maintaining the oil-based drilling mud, keeping it
from

overheating,

preventing

the

well

from

blowing

preventing fluid loss that might threaten safety.
Hayes Dep., 33:12-34:12.

out,

and

#26, Ex. B,

During drilling operations, a flow line

connects the mud from the drill to the trip tank, which has a
limited

capacity.

Id.

at

23:17-24;

24:16-18.

To

facilitate

drilling, the driller at times must pump a “slug,” a process called
“tripping out.”

Id.. 23:10-12.

Weed explained during his deposition that on a trip out, the
derrickman made certain that all of the valves were closed so
nothing was running. #26, Ex. A, Weed Dep., 72:19-73:1;108:11-13.
One of the valves was the flow line for the mud to return to the
shale shakers.

#26, Ex. B, Hayes Dep., 18:24-19-4; Ex. A, Weed

Dep., 95:14-16.

The shakers clean and store the oil-based mud for

re-use.

#26, Ex. B, Hayes Dep., 24:4-12.

If the mud is not

diverted to the shakers, the volume of it will be more than the
-25-

capacity of the trip tank and it will overflow or spill.
24:13-20.

Id. at

To be certain that the valves are in the proper

position, if the foot-long handle is perpendicular to the pipe, the
valve is closed; if it is aligned with the pipe, it is open.

Id.,

Ex. A, Weed Dep., 130:16-18, 12-15.
According to Sidewinder, on Weed’s first job in North Dakota
in November 2012, he caused a spill when he failed to check the
alignment when the valves were not correctly aligned, so the oilbased mud overflowed the trip tank.

#26, Ex. B, Hayes Dep., 14:7-

20; Ex. A, Weed Dep., 125:7-126:7, 123:20-124:24, 125:7-126:7.
Conrad Peterson, a company representative of, and the man who gave
drilling orders for, StatOil,13 the company with which Sidewinder
had contracted to drill oil at this site, was present and reported
the overflow to Sidewinder.

#26, Ex. C, Mitchell Affid., ¶ 8; Ex.

A, Weed Dep., 124:7-125:6; Ex. B, Hayes Dep., 10:13-11:5.

Billy

Pitts, the Sidewinder rig manager on duty, orally counseled Weed
about

his

carelessness.

#26,

Ex.

A,

Weed

Dep.

125:14-20.

Sidewinder contends that Weed conceded that he failed to check the
valves and therefore the spill was his fault.

#26, Ex. A, Weed

Dep., 126:4-7 (“Technically, it’s my fault.”).14

13

#26, Ex. B, Hayes Dep., 10:20-11:2.

14

Sidewinder takes this sentence out of context, thereby
misrepresenting its content. The deposition testimony is as
follows (Ex. A 125:7-127:10):
Q. So let me make sure that I understand this. You
came on and you talked to the derrickhand who was going
-26-

off shift. Right?
A. Yes, sir.
Q. And the derrickhand represented to you that
everything was good to go?
A. Yes, sir.
Q. And you took him at face value?
A. I took him at face value and that’s when Billy
Pitts counseled me at that point in time–
Q. (By Mr. LaMendola) Billy Pitts counseled you about
taking other employees at face value?
A. Yep.
Q. As a derrickman, just because the derrick man
that’s going off tells you something doesn’t mean that
you can necessarily rely on that. Right?
A. Yes, sir.
Q. Does it relieve you of your independent
responsibilities as a derrickman to make sure that the
operations are going to correctly go forward?
A. No, sir.
Q. So that wasn’t your fault, the fact that you didn’t
double check what had previously been done, that’s not
your fault?
A. Technically, it’s my fault.
Q. Okay. And Conrad Peterson was present and saw that
you were the derrickman–is it derrickman?
A. Derrickhand.
Q. Conrad Peterson was present when this first
incident occurred and was aware that you were the
derrickhand that was on shift when it occurred?
A. Yes, sir.
Q. Did you talk with Conrad about what happened?
A. No.
Q. Did you tell Billy Pitts, the rig manager, that it
wasn’t your fault that it was actually the other
derrickhand’s fault?
A. Yes.
Q. Who was the other derrickhand?
A. I don’t recall his name.
Q. So both of these incidents that you were involved
in, not your fault? Fair to say?
A. One of them I know for sure is not my fault.
Q. Which one?
A. Both of them, technically, is not my fault but one
of them I can take the blame for because I didn’t go
down and check like Billy Pitts told me. The first one
was not my fault.
Q. The first one’s not–-okay. So the second one is
-27-

According to Sidewinder, three months later, on February 18,
2013, rig manager and Weed’s supervisor, Steven Hayes, was on duty
and reported that Weed told the driller that he had the valves
properly aligned for the oil-based mud to go to the shakers.

The

valves were not properly aligned, with the result that a volume of
the mud overflowed the trip tank and caused a spill.
Hayes Dep., 18:21-19:12.

#26, Ex. B,

Conrad Peterson of Statoil was also

present at this spill and reported it to Steven Hayes, who then
investigated.

Ex. A, Weed Dep. 110:16-11:6; Ex. B, Hayes Dep.,

27:10-18, 24:25-25:4.

Hayes decided that Weed was responsible for

the spill because the spill was in his work area and because Weed
was there when Hayes went down to investigate.
Dep., 25:7-13.

#26, Ex. B, Hayes

Hayes asked Weed what happened, and, according to

Hayes, Weed admitted, “I didn’t have it lined up right,” although

your fault?
A. No. The one with changing the valves is not my
fault. So that would have been the incident on the
eighteenth.
The questioning continues as Weed was asked to read his answer to
Interrogatory No. 4:
A. Plaintiff was terminated simply for a mud spill due
to a changed trip valve. Plaintiff did not change the
valve and was not responsible for this either, due to
his light duty. Plaintiff was assigned to run the TM80
and was never assigned to switch the trip out valve.
Q. Here’s what you said under oath is that you were
terminated for the mud spill due to a changed trip
valve, but you weren’t responsible for this because you
were on light duty and that you were assigned to run
the TM80. You weren’t assigned to watch the trip-out
valves.
A. Yes sir. That’s what it says.
-28-

Hayes conceded that Weed did not admit to causing the spill.
Ex. B, Hayes Dep., 25:23-26:8, 16:12-15.

#26,

According to Hayes,

however, the misalignment caused the spill, but Hayes also stated
that he could not remember if there was anyone there with him when
he talked to Weed.

Id., 26:12-18.

Hayes testified that he then

brought up the prior spill, and claims that Weed did not say
anything.

Id., 26:19-24.

Later that day according to an email

from Wendy Mitchell, Statoil called Hayes and told Hayes that Weed
would no longer be allowed to work on a rig currently under
contract to Statoil, although Hayes could not remember it. Id., Ex.
B, Hayes Dep., 28:20-29:24. Hayes then “kicked [Weed] off the rig.”
Ex. B, 31:7-24.

Furthermore Hayes recommended that Sidewinder

discharge Weed. Id. at 32: 2-4; #26, Ex. C, Mitchell Affid. at ¶4.
Hayes again discussed the first mud spill, and Weed did not deny he
was responsible.15

Ex. A, Weed Dep., Ex. B, Hayes Dep. 32:13-19.

Sidewinder paid to fly Weed home to Colorado the next day.

Ex. A,

Weed Dep., 132:14-20.
According to Sidewinder, Weed was terminated not only because
he caused two spills of oil-based mud in four months, but also
because he was an incompetent employee at a time when derrick hands
were easy to replace.

#26, Ex. B, Hayes Dep., 39:2-16, 36:8-10,

37:1-6. Hayes stated that Weed “just didn’t know what he was doing

15

The Court observes that “Weed did not dispute” and “Weed
did not deny he was responsible” are not the same as “Weed
admitted.”
-29-

up

there.”

Id.,

13:15-17.

Weed

allegedly

left

equipment

unrepaired for his relief to fix and had difficulty maintaining his
drilling mud and working the monkey board. #26, Ex. B, Hayes Dep.,
33:12-21, 34:6-12, 13:5-14.

Weed had frequently been counseled by

Hayes about the same problems.

Id., Hayes Dep., 66:20-67:11,

67:20-68:1.
Since Weed had been employed by Sidewinder for less than a
year, he had not received an annual appraisal before he was removed
from

Rig

103.

After

reporting

blood

in

his

urine

to

his

supervisor, Weed, accompanied by safety hand Joshua Ransonet, went
to the emergency room in North Dakota.

After running tests,

including a CT scan, on Weed, the doctor informed him that he had
a cyst on his kidney.

He did not tell Weed that he likely had

cancer, but rather said “that there’s a potential chance of it
being cancer.”
81:4-14.
common

Ex. B, Hayes Dep., 37:12-38:1; Ex. A, Weed Dep.,

While Sidewinder understood that a cyst on a kidney was

and

that

a

followup

to

rule

out

cancer

was

just

a

precaution, Sidewinder insists that neither Sidewinder nor Weed
knew he had cancer or perceived him as being disabled.

Ex. C-3,

Ransonet Emails at SIDEWINDER 19,2016; Ex. B, Hayes Dep. 38:7-39:1,

16

Josh Ransonet’s first email, sent Saturday, February 16,
2013 at 7:43 p.m., in response to a question from “Canebrake 103
RM,” Weed’s rig assignment (#26, Ex. C-1),“Do you think he [Weed]
needs to go home and get checked out by his own dr[.]” Hayes
admitted during his deposition that he was the author of the
initial Canebrake email inquiring about Weed’s health the day he
went to the emergency room because of blood in his urine.
Ransonet wrote,
-30-

Ex. C, Mitchell Affid. at ¶13.

Sidewinder maintains that the

ultimate decision maker, Wendy Mitchell, did not know that the
doctor had told Weed he might have cancer. Ex. C, Mitchell Affid.,
¶14.

Weed’s doctors released him that day to go back to work, full

duty, but “restricted to ground work only.”

Ex. B, Hayes Dep.

The doctor just came back from cat scan 2. He said it
was a large cyst. The cyst still has a possibility of
being cancerous so they want to run further tests a
week from Monday over in Minot. He was cleared to go
back to work. He is to stay at ground level but can
work normal labor. Doctor said he can’t hurt anything.
Just don’t want him on the monkey board.
Even later that same night at 11:06 p.m., an hour suggesting
heightened concern about Weed, Ransonet sent another email:
Made it home safe tonight after dropping off Jason.
Final diagnosis was that he has a cyst on his left
kidney. As the cyst grows it pulls at the tissues
causing bleeding. Hence, the blood in the urine. He
says this is common and most people have them and never
know. He gave him some antibiotics and told him to
call the hospital in Minot on Monday, A urologist
would like to see him Monday after next. Next step in
MRI just to be sure cyst isn’t cancerous. Just a
precaution. Dr says Jason is fine to go to work,
normal working conditions, however, not at a height
until after seeing the urologist. Again just a
precaution.
During Weed’s deposition, #26, Ex. A. 80:1-5, regarding the
safety hand who took him to the emergency room in Williston after
Weed spotted blood in his urine, as well as a couple of months
earlier when he suffered abdominal pain while at work, Weed was
asked if it was company procedure to send somebody with an
employee when he went from work to see a doctor. He responded
yes, and was asked, “Do you know why that was?” Weed answered,
“Normally that’s for the company knows what’s going on with you.”
Contrary to Hayes’ comment when Weed reported blood in his urine,
these emails suggest that Sidewinder was keeping very close watch
on Weed and seeking very updated information about Weed’s medical
diagnosis.
-31-

38:7-14; Ex. B-2 and Ex. C-2, Weed’s doctor’s note.

Weed returned

to work and gave the doctor’s note to Hayes. Id., Hayes Dep. 40:211.

Sidewinder followed the doctor’s instruction and assigned

another worker to the monkey board, but Weed continued to be
responsible for monitoring the valves to the trip tank and the
shakers, Ex. A, Weed Dep., 95:10-16; Hayes Dep., #26, Ex. B, 25:711.

After the spill and doctor’s visit on February 16, 2013, Weed

continued working for Sidewinder on February 17 and 18th, as
evidenced by the drilling reports.

Hayes Dep. #26, Ex. b, 41:-

42:6.
Sidewinder paid to fly Weed home to Colorado on February 19,
2013 to be checked out by his doctor.

#26, Ex. A, Weed Dep.,

134:12-14; Ex. C, Mitchell Affid. ¶5. The haste raises sufficient
questions

about

how

much

concern

possibility that Weed had cancer.

Sidewinder

had

about

the

According to Sidewinder, after

the second spill and after Weed returned to Colorado, he was
diagnosed with cancer.

Ex. A, Weed Dep., 134:17-25.

Wendy Mitchell immediately undertook an investigation to
decide

if

Hayes’

appropriate.

recommendation

that

Weed

be

terminated

Ex. C, Mitchell Affid. at paragraphs 1,7.

was
She

examined the write-up on the second spill and communications from
Hayes that StatOil did not want Weed working on its wells.

Hayes

is the only person to assert that Statoil did not want Weed on its
rig.

Weed conceded that he was involved in the first mud spill

and, regarding the second, according to Mitchell, Weed said that if
-32-

he had paid more attention to the trip tank, it would not have
overflowed.

Ex. C, Mitchell Affid., ¶¶ 8, 10.

purportedly

talked

to

Stephanie

Schultz,

Mitchell then

Sidewinder’s

Human

Resources Manager, and Travis Fitts, Sidewinder’s Senior Vice
President and Chief Administrative Officer of Operations, but the
content of their conversations is not discussed.

Id., at ¶11. The

Court notes that during Mitchell’s “investigation,” which began
immediately after the February 18, 2012 spill, and nearly three
months

before

Weed

would

have

been

employed

for

a

year

by

Sidewinder, Mitchell asked Hayes to fill out a “Sidewinder Annual
Appraisal Field Based Non-Supervisors.” The form for the appraisal
was printed off by Hayes, who testified it in turn was filled out
by Weed’s immediate supervisor, Charles Johnson, was dated February
19, 2013 (#26, Ex. C-1 At ¶¶ 4-7 and Ex. C-1).
is illegible.

The signature on it

Hayes was asked at his deposition whether he agreed

with the low scores on the appraisal and whether Weed was a
“subpar” employee; Hayes answered yes.
35:1-36:10.

#26, Ex. B, Hayes Dep.,

Mitchell discharged Weed on February 27, 2013.

Sidewinder argues that Weed’s ADA claim fails as a matter of
law because Weed cannot prove a prima facie discrimination claim
under

the

statute

and

because

Sidewinder

nondiscriminatory reason to terminate him.

had

a

legitimate,

Weed cannot prove the

third element of a prima facie case of discrimination, that
Sidewinder discharged him “because” of his disability, because no
one, including Weed, knew of his disability or regarded him as
-33-

disabled at the time of his termination.

Nor can Weed show that he

was replaced by a non-disabled employee or treated less favorably
than non-disabled employees under nearly the same circumstances
(e.g., held the same job or responsibilities, shared the same
supervisor, had employment status determined by the same person,
and have comparable violation histories).

Turner v. Kansas City

Southern Railway Co., 675 F.3d 887, 893 (5th Cir. 2012).

The Fifth

Circuit construes “very narrowly” the requirement that comparators
be “similarly situated” as a “stringent standard.”

Montemayor v.

Trump Healthcare, No. H-11-2436, 2013 WL3229716, at *3 (S.D. Tex.
June 25, 2013).
Sidewinder

observes

that

Weed

names

Charles

Johnson

(“Johnson”) and Shaun Coleman (“Coleman”) as comparators, but
emphasizes
disabled.

that

Weed

provides

no

evidence

whether

they

are

Weed claims that Johnson is a comparator because on the

same day that Weed allegedly caused his second mud spill, Johnson
bent 90 feet of pipe, but was not terminated.
comparable

violation

histories

and

they

situated” employees, Sidewinder argues.

are

These are not
not

“similarly

See, e.g., Player v.

Kansas City Southern Ry., 496 Fed. Appx. 479, 482 (5th Cir. Nov. 16,
2012)(comparing Player and two purported comparators). Johnson and
Weed are not comparators because they did not have similar job
duties,17 because bending pipe, which may have financial costs, is

17

For Johnson’s duties as a driller see Ex. B, Hayes Dep.,
35:35-36:2; 47:15-24; 21:13-14; Ex. C, Mitchell Affid. ¶ 16
-34-

not similar to spilling oil-based mud, which creates safety and
environmental hazards, and because Johnson was a competent employee
and Weed was not.

Johnson was a driller and was Weed’s immediate

supervisor on February 18, 2013, when Weed was a derrickman, a
position below in seniority to a driller.18
Nor

was

Coleman

“similarly

situated”

to

Weed,

insists

Sidewinder. Coleman allegedly spilled oil-based mud in April 2013
and was not terminated, but he also failed to satisfy any of the
Fifth

Circuit’s

employee.

three

requirements

for

a

similarly

First his job was lower level than Weed’s.

situated

When Weed’s

April spill occurred, Coleman was a Floorhand, an entry-level
position with fewer responsibilities than a derrickman, who has
more knowledge and experience than a Floorhand. Ex. B, Hayes Dep.,
45:21-25, 46:5-13; Ex. A, Weed Dep. 20:17-23.
quite different:

Their duties are

a derrickman’s duties include assisting the

driller in drilling operations, working the monkey board, managing
the mud system and equipment, and monitoring and repairing the
monkey board and mud pumping system.
¶17.

Ex. C, Mitchell Affid. at

In contrast, a Floorhand is a general helper on the rig whose

duties include working on the rig floor during tripping operations,
performing maintenance and repairs on rig equipment as directed by

For a derrickman’s duties see Ex. c, Mitchell Affid. pars17
18

As noted supra, under LHC Group and progeny, comparators
and similarly situated employees are no longer required for
disability discrimination in termination claims under the ADA.
-35-

the Driller, operating pipe handling equipment on the drilling
location, and maintaining good housekeeping on the drilling site.
Id. at ¶18.

Second, on the date Coleman purportedly caused a mud

spill, the rig manager was Justin C. McKowan.

Ex. B, Hayes Dep.,

46:14-47, 77:15-21. At the time of Weed’s February 18, 2013 spill,
which led to his removal from the drilling rig, Steven Hayes was
the rig manager.

“Comparators with different supervisors . . .

generally will not be deemed similarly situated.”

Anderson v.

Harrison County, 639 Fed. Appx. 1010, 1014-15 (5th Cir. Feb. 12,
2016).

Third, regarding the fourth element of a prima facie case,

that Coleman was an extremely proficient employee, unlike Weed,
accounts for their different treatments by Sidewinder.

Ex. C,

Mitchell Affid. ¶15.
Furthermore Sidewinder had a legitimate, nondiscriminatory
reason for terminating Weed, i.e., poor performance.
an

employee

for

what

management

believes

is

Terminating

unsatisfactory

performance is legitimate and nondiscriminatory as a matter of law.
E.E.O.C. v. LHC Group, Inc., 773 F.3d 688, 701-02 (5th Cir. 2014).
Sidewinder

maintains

that

it

terminated

a

poorly

performing

employee who only later happened to be diagnosed as having cancer.
Sidewinder contends that Weed has not produced any evidence of
pretext.
As for a retaliation claim under the ADA, to make a prima
facie case the plaintiff must prove that (1) he participated in an
activity protected under the statute, (2) his employer took an
-36-

adverse employment action against him, and (3) a causal connection
exists between the protected activity and the adverse action.
Feist v. State of La., Dep’t of Justice, Office of the Attorney
General, 730 F. 3d, 730 F.3d 450, 454 (5th Cir. 2013).

Sidewinder

asserts that requesting accommodations under the ADA may constitute
a protected activity if the plaintiff has a good faith belief that
he was disabled or perceived as disabled when the request was made.
See Tabatchnik, 262 Fed. Appx. at 676-77 (upholding a summary
judgment in an ADA retaliation claim:

“Because Tabatchnik has not

shown that he had a good faith belief that he was disabled or
perceived as disabled, his request cannot be considered protected
by the ADA.”).

Sidewinder argues that Weed’s retaliation claim

fails because at the time he requested an accommodation, he did not
know he was disabled, so he could not have had a good faith belief
that he was disabled or perceived as disabled by Sidewinder.

Thus

his request for an accommodation was not a protected activity under
the ADA.

Tabatchnik, 262 Fed. Appx. at 677.

Furthermore, insists Sidewinder, even if Weed could prove a
prima facie case of retaliation, the burden shifts to Sidewinder to
provide

a

Sidewinder

nondiscriminatory
had

a

reason

legitimate

for

terminating

nondiscriminatory

Weed.

reason

for

discharging Weed, i.e., that he was incompetent as evidenced by the
two mud spills and other conduct.

Weed cannot prove this reason

was pretextual and that his doctor’s note was the but-for cause of
his termination.
-37-

Weed’s Response (#31)
Supported by his own self-serving affidavit19 (Ex. A to #31),
Weed contradicts a number of Sidewinder’s material assertions,
Hayes’ deposition, Mitchell’s affidavit, and evidence and raises
genuine issues of fact for trial.

When Magistrate Judge Stacy

addressed Sidewinder’s motion to strike Weed’s affidavit (#32), she
struck only five sentences, three noted below, as contrary to
Weed’s deposition testimony or as substantially misleading (#38).
The rest of his affidavit was allowed into evidence.

The Court

agrees with Judge Stacy that “[t]he statements in paragraphs
3,4,5,7, and 11 of Jason Weed’s affidavit do not clearly, directly,
and irreconcilably contradict his deposition testimony.”

#38, p.

n.1.

19

A party’s affidavit is often self-serving, but the Fifth
Circuit does not exclude such an affidavit as incompetent for
that reason by itself. C.R. Pittman Const. Co. v. National Fire
Ins. Co. of Hartford, 453 Fed. Appx. 439, 443 (5th Cir. Oct. 24,
2011)(“[A]n affidavit based on personal knowledge and containing
factual assertions suffices to create a fact issue even if the
affidavit is arguably self-serving.”), citing inter alia Payne v.
Pauley, 337 F.3d 767, 773 (7th Cir. 2003)(“Provided that the
evidence meets the usual requirements for evidence presented on
summary judgment--including the requirements that it be based on
personal knowledge and that it set forth specific facts showing
that there is a genuine issue for trial--a self-serving affidavit
is an acceptable method for non-moving party to present evidence
of disputed material facts.”), and Santiago-Ramos v. Centennial
P.R. Wireless Corp., 217 F.3d 46, 53 (1st Cir. 2000)(“[A]
‘party’s own affidavit, containing relevant information of which
he has first-hand knowledge, may be self-serving, but it is
nonetheless competent to support or defeat summary judgment.’”).
A party’s self-serving and unsupported statement in an affidavit
will not defeat summary judgment where the evidence in the record
is to the contrary.
-38-

In paragraphs 3 and 4 of his affidavit, Weed avers,
3. During my employment with Sidewinder, Mr. Hayes never
counseled me, verbally or in writing. Mr. Hayes never
criticized my job performance for Sidewinder. Mr. Pitts
also never counseled me, verbally or in writing. Mr.
Pitts never criticized my job performance for Sidewinder.
Likewise Mr. [Charles] Johnson [driller] never counseled
me, verbally or in writing.
Mr. Johnson also never
criticized my job performance for Sidewinder. In fact,
Mr. Johnson often praised my performance as a Derrickhand
and said on at least one occasion that I knew the pit
system better than anyone else.
4. Further, I was never counseled or criticized for my
work performance by any of my other Sidewinder superiors.
Weed raises key questions about the degree of seriousness and
danger of the two spills and who was actually responsible for each
of them.

Regarding the first issue, he attested, id. at paragraph

5,
5. Sometime in November of 2012, as I was coming into my
shift, there was a minor seepage of mud over the trip
tank. This is not a spill. The mud barely spilled over
on the side of the trip tank. Below the tank is the trip
tank container. The seepage never even went into the
trip tank container and thus the mud never came even
close to the ground. This minor seepage occurred because
the flow line was running back into the trip tank and not
into the shakers. When I came on shift, I was told by
the Derrickhand I was relieving that the valves were
aligned back into the shakers. This was incorrect and
caused the minor seepage. At the time, the Rig Manager
was Billy Pitts. Mr. Pitts did not counsel me and he did
not say this was my fault. Mr. Pitts only told me that
sometimes you cannot trust the person you are relieving.
Mr. Hayes was not on shift during this incident and he
never talked to me about this incident.
Furthermore, Weed submitted an affidavit from Steven

-39-

Kussman (“Kussman”),20 a crew member on the rig, testifying that he
believed Shaun Coleman caused the spill by switching the valves on
the flow line without alerting Weed to the change.
Affidavit at ¶4.

Ex. F, Kussman

Like his co-workers, Kussman was never asked how

the spill happened.

Id., ¶6; Ex. E, Mitchell Dep., 55:25-56:23.

The spill was cleaned up in about thirty minutes.

Ex. F, Kussman

Affid. at ¶6. Furthermore Sidewinder did not register the spill in
its Daily Drilling Report, nor complete an Environmental Incident
report because the spill was not an environmental incident, nor did
Sidewinder report it in its downtime report because it did not
result in any employee or rig downtime.
36:14.

Ex. G, Fitts Dep., 35:11-

Fitts, Sidewinder’s corporate representative, Senior Vice

President, and Chief Administrative Officer, also testified that
the spill was not a breach of policy, nor did he consider it
serious misconduct.

Id. at 89:5-7.

Regarding the second spill, paragraphs 8-12 state,
8. On February 18, 2013, I was training Shaun Coleman,
a floor hand, to run the pits. I later heard from others
that Mr. Coleman switched the valves on the flow line
without asking or telling me. I had previously told Mr.
Coleman that he could not switch the valves on the flow
line without my approval. By switching the valves on the
flow line, Mr. Coleman caused about fifteen (15) barrels
of invert mud to overflow.

20

Although Sidewinder moved to have Kussman’s affidavit
stricken on the grounds that Kussman was not listed in Weed’s
Rule 26 disclosures (#32 at p.1), Magistrate Judge Stacy
overruled the objection on the grounds that Weed’s submissions
“show that Steven Kussman was sufficiently disclosed during
discovery-although his name was initially misspelled.” #36 at ¶¶
4 and 5.
-40-

9.
pan
the
and

Most of the overflowed invert mud went into the catch
around the trip tank and a minimal amount went onto
matting boards. No invert mud went onto the ground
no spill was reported. . . .21

10.
The spill was quickly cleaned up without any
interruption to the drilling operations.
Around this
time, Mr. Johnson bent some drilling pipe. This caused
the rig to stop operating for between an hour or two.
11. After we cleaned up the spill, Mr. Hayes, without
asking me what happened, fired me. He said simply, “I’m
firing you.” I believed that as the Rig Manager, Mr.
Hayes had the authority to fire me.
12. I never saw or heard Mr. Hayes ask any of the other
members of the crew how the spill occurred or who was
responsible for the spill. I thought this was odd since
at the time of the spill Mr. Hayes was in his office and
he could not have seen or heard how the spill occurred.
Weed also submits an email written by Hayes to Wendy Mitchell
(Ex. D), in which Weed says that Hayes lied in stating that he
verbally

counseled

Weed

regarding

the

November

2012

incident

because Hayes admitted during his deposition that he was not there
at the time.

Ex. C, Hayes Dep., 59:18-61:8.

not answer basic questions about the event.

Indeed, Hayes could
Ex. C, Hayes Dep.

53:4-20. During his deposition Hayes conceded that it was fair to
say about the November 2012 event that he did not know “if it was
Hayes’ fault or someone else’s fault.”

Id. at 56:4-20.

Weed

further insists that Hayes never counseled him or any of his

21

Judge Stacy struck the last three sentences as contrary to
Weed’s deposition or substantially misleading:
In fact, Statoil representative, Conrad Peterson, told
me that everything was okay. Mr. Peterson said to
clean up the spill and that it would not be reported.
Mr. Peterson was calm and did not appear upset.
-41-

supervisors while he was employed with Sidewinder, and neither
Hayes nor Defendant produced any written, corroborative evidence
that

Weed

was

ever

counseled

or

disciplined

prior

to

being

diagnosed with cancer.
Sidewinder claims that Mitchell performed an independent
investigation of what led up to Weed’s termination, but Weed argues
that Mitchell relied solely on what Hayes told her or provided to
her and that the investigation was anything but independent and
adequate.

She did not talk to or get statements from Rig Manager

Pitts, nor any managers or supervisors, did not review any of the
numerous reports used by Sidewinder to document serious issues, nor
talk with or receive statements from any of the crew members or
Statoil representatives.

Ex. E, Mitchell Dep. 51:10-52:11, 53:4-

54:23, 51:21-52:11; 55:25-56:11, 52:12-17, 56:19-57:1.

Mitchell

did review a write-up about the February 18th spill, but that
write-up was written by Hayes.

She reviewed an evaluation of Weed

after he was discharged that Hayes contended was written by Charles
Johnson, but Mitchell never talked to Johnson or got a statement
from him to confirm or deny that he wrote it.

In essence, argues

Weed, even if Mitchell made the ultimate decision to fire Weed, she
merely “rubber-stamped” Hayes’ recommendation without performing an
independent investigation. If an independent investigation relies
on facts provided by a biased supervisor, the employer (either
directly

or

through

the

ultimate

decisionmaker)

will

have

effectively delegated the factfinding portion of the investigation
-42-

to the biased supervisor. Staub v. Proctor Hospital, 562 U.S, 411,
421

(2011).

The

degree

to

which

the

final

decisionmaker’s

decisions were based on his or her own independent investigation is
a question of fact.

Long v. Eastfield College, 88 F.3d 300, 307

(5th Cir. 1996).
Weed asserts that there is no dispute the Sidewinder knew on
February 16, 2013, two days before he was sent
might have cancer.

home, that Weed

As discussed, Josh Ransonet sent Hayes two

emails that day updating him on Weed’s doctor visit, one as late as
11:06 p.m.

Weed also told Hayes that the doctors said Weed might

have cancer.

Ex. A, Weed Affid. at paragraphs 3-4.

The safety

hand that accompanied Weed to the hospital also told Hayes that the
doctor

said

cancerous.

Plaintiff’s

cyst

had

the

possibility

of

being

Ex. K, February 16, 2013 E-mail from Josh Ransonet

labeled SIDEWINDER 20. The ADA’s definition of “disability” allows
suits by plaintiffs who, although not actually disabled under §
12102(2)(A), are nonetheless “regarded by the employer as having
such impairment.”

42 U.S.C. § 12102(2)(C):

One is regarded as having a substantially limiting
impairment if the individual (1) has an impairment which
is not substantially limiting but which an employer
perceives as constituting a substantially limiting
impairment; (2) has an impairment which is substantially
limiting only because of the attitudes of others toward
such an impairment; or (3) has no impairment at all but
is regarded by the employer as having a substantially
limiting impairment.
Bridges v. City of Bossier, 92 F.3d 329, 332 (5th Cir. 1996).
To the degree that Sidewinder argues that Weed was not
-43-

disabled because there was not a 100% confirmation that he had
cancer, Weed points to Hayes’ comments which Weed claims show that
he regarded Weed as having a substantially limiting impairment.
Weed reported that when he returned from the doctor with an order
that he be put on light duty, Hayes was upset and not happy; Hayes
asked

Weed “what good are you doing out here.

anything.

You will have to train somebody.”

You won’t be doing

Ex. A, Weed Affid. at

¶7. Furthermore, Weed points to the temporal proximity of only two
days between Sidewinder’s knowledge of his potential disability and
his being sent home for further medical evaluation, which confirmed
he had cancer, and was quickly fired by Mitchell on the 27th of
February, as sufficient evidence of causality to establish a prima
facie case.

Clark Co. Sch. Dist. v. Breeden, 532 U.S. 268, 273

(2001)(“The cases that accept mere temporal proximity between an
employer’s

knowledge

of

protected

activity

and

an

adverse

employment action as sufficient evidence of causality to establish
a prima facie case uniformly hold that the temporal proximity must
be ‘very close.’”).

Meanwhile Hayes had been urging the quick

dismissal of Weed since the February spill, the significance of
which he has questioned.
As for his retaliation claim,22 Weed argues that a plaintiff

22

To state a prima facie claim of retaliation under the ADA
the plaintiff must show that (1) she engaged in an activity
protected by the ADA, (2) she was subjected to an adverse
employment action, and (3) a causal connection exists between the
protected activity and the adverse employment action. Seaman v.
CSPH, Inc., 179 F.3d 297, 301 (5th Cir. 1999).
-44-

does not need to show that he suffers from an actual disability;
rather, a reasonable good faith belief by the plaintiff that the
statute has been violated is sufficient.
Appx. 671 & n.1.
his

doctor’s)

Tabatchnik, 262 Fed.

A request for accommodation, such as Weed’s (and

for

light

duty

on

the

ground,

qualifies

as

a

protected activity for purposes of a retaliation claim. Jenkins v.
Cieco Power, LLC, 487 F.3d 308, 317 n.3 (5th Cir. 2007).
Furthermore, Weed notes, the Court examines three factors in
evaluating the causal link element of a retaliation claim:

“(1)

the extent of the employee’s past disciplinary record; (2) whether
the employer followed its policies and procedures in dismissing the
employee; and (3) the temporal relationship between the employee’s
conduct and his termination.”

Nowlin v. Resolution Trust Co., 33

F.3d 498, 508 (5th Cir. 1994).
Sidewinder challenges only the first element and, without
supporting evidence, claims that Weed’s retaliation claim fails
because he did not know he was disabled.

Weed has previously

described why he thought he might have cancer and how others may
well have perceived him as having cancer.
Weed may show the employer’s reason for his discharge is
pretextual by evidence of disparate treatment or demonstrating that
the employer’s proffered reason is false or unworthy of credence.
Laxton v. Gap, Inc., 333 F.3d 572, 578 (5th Cir. 2003).

Here

Sidewinder seems to claim that Weed was a bad employee and caused
two mud spills.

There is no objective evidence to support such a
-45-

claim. Weed has shown that Hayes during his deposition admitted he
did not know who caused the November 2012 spill. Thus Hayes’ claim
that he discharged Weed from Rig 301 for causing the first spill is
false.

Regarding

the

second

spill,

Weed

produced

Kussman’s

affidavit indicating Kussman’s belief that Coleman caused that
spill.

Sidewinder produces no evidence of anyone who was on the

rig at the time of the spill to explain how the accident occurred
and who was responsible, but instead relies on Hayes, who was in
his office and not on the rig at the time.

In addition evidence

undermines the credibility of Hayes’ proffered justification.
Weed points out that Sidewinder has a written progressive
disciplinary policy that first begins with oral counseling, then
requires written counseling, followed by suspension, and finally
termination.

Ex.

H,

Feb.

8,

2013

Performance

Disciplinary Process labeled SIDEWINDER-53-54.

Counseling/

Even if the first

spill was Weed’s fault, it would have been his first disciplinary
issue and should have resulted in only a written warning.

When an

employer has a disciplinary system that involves warnings, failure
to follow that system gives rise to inferences of pretext. Goudeau
v. National Oilwell Varco, L.P., 793 F.3d 470, 477 (5th Cir. 2015),
citing Machinchick v. PB Power, Inc., 398 F.3d 345, 354 n.29 (5th
Cir. 2005)(Even if the policy is not mandatory and the plaintiff is
an at-will employee, “these facts do not eliminate the inference of
pretext

raised

specifically

by

its

stating

failure

that

it

to

follow

should

-46-

be

an

internal

‘followed

in

policy
most

circumstances.’”); Feist, 730 F.3d at 454-55 (relevant evidence for
establishing

a

prima

facie

retaliation

case

“may

include

an

employment record that does not support dismissal, or an employer’s
departure from typical policies and procedures.”).
Weed maintains that three other incidents involving three
other employees are more serious than the February 18 spill, but
for which those employees received no or only minor discipline. On
February

18,

2013

Driller

Johnson

bent

some

drilling

pipe,

resulting in downtime for the rig of two hours, during which the
rig was not operational and lost about $1,500 to $2,000.
Hayes Dep., 85:22-24; 86: 86:2-3; 86:4-11, and 85:3-7.
matter Johnson received a written counseling.

Ex. C,
For this

Ex. C,85:3-7.

Two

months later Coleman spilled 140 barrels of invert mud, with twenty
barrels spilled on the ground.

For this spill Sidewinder had to

complete an Environmental Incident report and Statoil had to hire
a vacuum truck to pick it up.
disciplined.

Weed does not know if Coleman was

On November 7, 2012 a Derrickhand named Jesse Jaros

caused twenty barrels of invert mud to spill, another incident that
required Sidewinder to complete an Environmental Incident report
because five of the barrels spilled on the ground. Ex. F, Kussman
Affid. ¶7; Exhibit I, April 23, 2013 Environmental Incident labeled
SIDEWINDER-139; Ex. G, Fitts Dep. 36:19-37:10, 55:1-7.
there is no indication whether Jaros was disciplined.

Again

Though the

February 18 spill attributed to Weed was the least serious in
caparison with the other three, it was the only incident that led
-47-

to someone’s termination.

It was not an Environmental Incident

because no mud went into the ground, the spill was not logged on
the Drilling Report, the spill did not cause any downtime, and it
did not result in any economic loss, argues Weed.
The

Court

points

to

Sidewinder’s

policy,

“Performance

Monitoring/Performance Counseling/Disciplinary Process” (#33, Ex.
H), which states in relevant parts,
OBJECTIVE
It is the objective of this policy to provide a defined
process regarding counseling and disciplinary actions
that facilitate the achievement of the Company’s business
objectives and is consistently fair and equitable for all
personnel.
SCOPE
This policy applies to all Sidewinder Drilling personnel
(domestic and expatriate), unless compliance would
violate local law or regulation.
EXPECTATIONS
1.
Under normal circumstances, Sidewinder endorses a
policy of progressive counseling and discipline in which
it attempts to provide employees with notice of
deficiencies and an opportunity to improve. It does,
however, retain the right to administer discipline in any
manner it sees fit.
This policy does not modify the
status of employees-at-will or in any way restrict
Sidewinder’s right to bypass the disciplinary procedures
suggested.
2. The normal application of progressive counseling and
discipline will be:
2.1
If an employee is not meeting the Company
Standards of performance, the employee’s supervisor
will take the following action:
2.1.1. Meet with the employee to discuss the
matter.
2.1.2 Inform the employee of the nature
of the problem and the action necessary
-48-

to correct it; and
2.1.3.
Prepare a note for the supervisor’s
own records indicating that the meeting has
taken place.
2.2.
If there is a second occurrence, the
supervisor is to hold another meeting with the
employee and take the following action:
2.2.1.
Issue
employee; . . .

a

written

warning

to

the

2.2.2. Warn the employee that a third incident
will result in more severe disciplinary
action; and
2.2.3.
Prepare and forward to the
Department Head or Area Manager (as
applicable)
the
written
warning
describing the first and second incidents
and a summary of the action taken/agreed
during the meeting with the employee.
2.3. If there are additional occurrences, the
Department
Head
or
Area
Manager
(as
applicable) should take the following action,
depending on the severity of the conduct:
2.3.1
Issue a
warning; . . .

written

reprimand

or

2.3.2. Suspend the employee (with or without
pay) for up to five working days; or
2.3.3.
Suspend the employee indefinitely
(with
or
without
pay)
and
recommend
termination.
2.4 After taking action under Expectation 2.3.3,
above, the Department Head or Area Manager (as
applicable) should prepare and forward to the Human
Resources
Department
another
written
report
describing the occurrences, and summarizing the
action taken or recommended and its justification.
. . .
4. In cases involving serious misconduct, or at
any time the supervisor determines it is necessary-49-

–such as a major breach of policy or violation of
law, the procedures contained in Expectation 2.3
above may be disregarded. Typically the Department
Head or Area Manager (as applicable) may suspend
the employee (with or without pay) and an
investigation of the incidents lading up to the
suspension conducted to determine if any further
action, such as termination, should be taken.
5.
The Department Head or Area Manager (as
applicable)
will
send
recommendations
for
termination to the Human Resources Department for
review.
This information must be accompanied by
any
needed
supporting
documents,
such
as
performance
appraisals,
warning
letters,
or
disciplinary reports.
(Emphasis added by the
Court.)
While

it

is

clear

from

the

language

that

Sidewinder’s

progressive policy is not mandatory in all cases, questions still
arise why it was not applied in Weed’s case.
explanation why it was not.
written

disciplinary

There is no

Moreover, the complete absence of any

record

in

his

case

to

corroborate

the

deposition and affidavit testimony of Hayes and Mitchell, which is
contrary to the testimony of Weed, is again without explanation and
highly suspicious, especially since Weed has raised issues about
the seriousness of the mud spills attributed to him and why they
were attributed to him, as opposed to the mishaps of other workers
who

were

not

terminated.

Moreover

the

complete

absence

of

corroborating written documents also means that step 5 has not and
cannot be met.

These differences are underlined by Sidewinders’

failure to complete an Environmental Incident Report in light of
Sidewinder’s insistence on the danger of the two mud spills
attributed to Weed, since such reports were issued following
-50-

accidents by others named by Weed. Another example, while Mitchell
claims that she spoke to Weed a few days after the second spill
attributed to him and that Weed supposedly admitted he caused it,
Mitchell has no objective or corroborative evidence to support her
claim.
Indeed the absence of objective and/or corroborating evidence
results in conflicting deposition and affidavit testimony creating
disputed issues of material fact here.
Sidewinder’s Reply (#33)
Because Judge Stacy’s ruling (#38) on Sidewinder’s motion to
strike Weed’s affidavit (#32) stands, the Court does not address
Sidewinder’s arguments that Weed’s affidavit is a “sham” or “work
of fiction” that misrepresents evidence or distracts with red
herrings and that he has changed his story three times.
Sidewinder argues that disputing an employer’s assessment of
an employee’s performance does not create a fact issue. LeMaire v.
Louisiana Dept. of Transp. and Development, 480 F.3d 383, 391 (5th
Cir. 2007)(“Our job as a reviewing court conducting a pretext
analysis is not to engage in second-guessing of an employer’s
business decision.

Our anti-discrimination laws do not require an

employer to make proper decisions, only non-retaliatory ones.
[citations omitted]”; Sandstad v. CB Richard Ellis, Inc., 309 F.3d
893, 899 (5th Cir. 2007)(“The issue at th pretext stage is whether
Appellee’s reason, even if incorrect, was the real reason for
Appellant’s termination.

Thus, Appellant must adduce evidence
-51-

supporting an inference that Appellee’s motive was age-based animus
or at least, that Appellee’s explanation if its motive is false.
[citations omitted]”). Weed must present evidence that would allow
a reasonable jury to find that Sidewinder did not actually believe
Weed’s performance was deficient and did not believe that he caused
the spills.

He has failed to do so.

Attacking the adequacy of

Sidewinders’ investigation is insufficient to create a fact issue
regarding

Sidewinder’s

reason

for

terminating

him.

Arey

v.

Watkins, 385 Fed. Appx. 401, 403-04 (5th Cir. July 14, 2010)(Under
the third step of the McDonnell Douglas burden-shifting framework
for discrimination claims under Title VII and § 1981, where the
evidence is circumstantial, the plaintiff has “the burden of
producing evidence that would allow a reasonable jury to find that
[the

employer’s]

proffered

reasons

were

pretexts

for

discrimination”; “‘even an incorrect belief that an employee’s
performance

is

inadequate

constitutes

a

discriminatory reason’ for termination. . . .’”

legitimate,

non-

“‘[A] dispute in

the evidence concerning . . . job performance does not provide a
sufficient basis for a reasonable factfinder to infer that [a]
proffered justification is unworthy of credence.”); Agoh v. Hyatt
Corp., 992 F. Supp. 2d 722, 746 (S.D. Tex. 2014)([T]he real issue
is

‘whether

[the

employer’s]

perception

of

[the

employee’s]

performance, accurate or not, was the real reason for [his or] her
termination.”).

Sidewinder argues that it does not matter whether

Weed caused the mud spills, an immaterial issue because Weed
-52-

has

not presented any evidence that Sidewinder did not believe its
stated reasons for terminating him.23
As for Weed’s retaliation claim under the ADA, Sidewinder
argues that Weed failed to show a conflict in substantial evidence
regarding whether the protected activity was the “but for cause of
his termination.

Feist, 730 F.3d at 454.

He also failed to

respond to Sidewinder’s argument that Weed did not have a good
faith belief he was disabled when he requested light duty.
Court’s Decision
The ADAAA governs here because the actions complained of
occurred after the ADAAa’s effective date of January 1, 2009.

An

individual satisfies the requirement of “being regarded as having
such an impairment” if he demonstrates that he has been subjected
to a prohibited action 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.”

42

U.S.C.

§

12102(3)(A). The amendment was designed to make it easier “to
obtain protection under the ADA.”

29 C.F.R. § 1630.1(c)(4).

The Court finds that Weed has raised a genuine issue of
material fact as to whether he qualifies as “disabled” under the
“perceived as disabled” prong of the definition of “disabled” in
the ADA and the ADAAA.

Weed went to doctors, first suffering from

23

Showing the employer’s failure to follow its standard
practice of discipline without any explanation, however, does
raise fact issues about Sidewinder’s “legitimate
nondiscriminatory reason” as pretext for Weed’s termination.
-53-

abdominal pain in November 2012 and, less than three months later,
from blood in his urine, resulting in his doctor’s concern to have
followup testing to determine if Weed might have cancer and in
imposing the restrictions that Weed work only on the ground at
Sidewinder.

That these facts were immediately conveyed the same

day of his doctor’s visit to Sidewinder by emails from Joshua
Ransonet, one as late as 11:06 p.m. at night, that Sidewinder acted
quickly to send Weed home within two days for an evaluation by his
own doctor, resulting in a diagnosis of cancer, and that Hayes
immediately

pressed

Mitchell

for

Weed’s

termination

from

Sidewinder, which occurred on February 27, 2013, raise substantial
questions of disability discrimination.

In addition Sidewinder

began an investigation on the second spill immediately after it
occurred on February 16, 2016, even though the spill apparently was
not viewed as significant enough to warrant Sidewinder’s preparing
an Environmental Incident Report nor mentioning it in the Daily
Drilling reports. That before Weed went home Weed returned to work
at Sidewinder for two days with the ground restriction and was able
to perform his job raises a genuine issue of material fact that he
was qualified for his job with or without accommodation, but
suffered termination because he was perceived as suffering from
cancer.

Furthermore, even though Weed was not due for his first

annual evaluation for several months, Mitchell arranged for one
immediately; then Hayes printed up the form and

purportedly gave

it to Weed’s immediate supervisor, Charles Johnson, who filled it
-54-

with negative evaluations, with Hayes’ concurrence, on February 19,
2013. The signature on the signature line is completely illegible.
In addition to this extreme haste, the complete lack of any written
disciplinary record for Weed other than Mitchell’s email regarding
her hasty and Mitchell’s cursory investigation of the February 16,
2013 spill, and the circumstances of Weed’s termination sharply
divergent from Sidewinder’s progressive discipline policy, raise
genuine issues of material fact about the actual reason(s) for his
dismissal.

Viewed in a light most favorable to Weed, all these

circumstances together give rise to a reasonable inference that
Sidewinder acted to cover up its actual reason for terminating
Weed.

Weed

has

raised

a

genuine

issue

whether

all

these

circumstances combined in this scenario are sufficient to trigger
protection for him as an employee “perceived” to be disabled under
the ADAAA and treated as if he had such a disability, and whether
Sidewinder’s explanation for his termination (“subpar” employee)
was pretextual.

As noted, under the ADAAA, cancer, even when in

remission, is a “disability” that substantially limits the major
life

activity

of

“normal

cell

growth.”

42

U.S.C.

§

12102(4)(D)(expressly stating, “An impairment that is episodic or
in remission is a disability if it would substantially limit a
major life activity when active.”).

See Cutrera v. Board of

Supervisors of Louisiana State University, 429 F.3d 108, 112 (5th
Cir. 2005)(recognizing that a plaintiff’s own description of the
symptoms he suffers is sufficient to raise a genuine issue of
-55-

material fact for trial as to whether he is disabled within the
meaning of the ADA), cited by Carbaugh v. Unisoft Intern., Inc.,
Civ. A. No. H-10-0670, 2011 WL 5553724, at *8 (S.D. Tex. Nov. 15,
2011).
Accordingly, for the reasons stated above, the Court
ORDERS that Weed’s claim for failure to accommodate under the
ADA is DISMISSED with prejudice.

The Court further

ORDERS that Sidewinder’s motion for summary judgment (#24) is
DENIED.
SIGNED at Houston, Texas, this

29th

day of

March , 2017.

___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE

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