Pendleton v. Prairie View A&M University
Filing
52
MEMORANDUM AND ORDER denying 37 MOTION for Summary Judgment (Signed by Judge Keith P Ellison) Parties notified.(arrivera, 4)
United States District Court
Southern District of Texas
ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
DR. ALICE M. PENDLETON,
Plaintiff,
VS.
PRAIRIE VIEW A&M UNIVERSITY,
Defendant.
§
§
§
§
§
§
§
§
December 07, 2016
David J. Bradley, Clerk
CIVIL ACTION NO. 4:15-CV-736
MEMORANDUM AND ORDER
Pending before the Court is Defendant Prairie View A&M University’s Motion for
Summary Judgment (Doc. No. 37). After considering the Motion, the responses thereto, and all
applicable law, the Court determines that the Motion should be denied.
I.
BACKGROUND
Plaintiff Alice Pendleton brings claims of disability discrimination 1 against Defendant
Prairie View A&M University under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §
794, and the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213. (Doc. No. 7.)
The undisputed facts are as follows. Plaintiff has had total joint replacements in both of
her hips and her right shoulder. (Doc. No. 37 at 4; Doc. No. 46 at 2.) As a result, she has mobility
impairments that prevent her from walking long distances and limit her range of motion in her
right arm. Id. In 2009, Defendant hired Plaintiff to serve as an adjunct assistant professor in the
Mechanical Engineering Department and to work as a research assistant on the Center for
Radiation Engineering and Science for Space Exploration (“CRESSE”) project under a five-year
grant from NASA. (Doc. No. 37 at 3; Doc. No. 46 at 14.) Plaintiff worked on the CRESSE
1
Plaintiff initially brought a claim of sex discrimination under Title VII of the Civil Rights Act
of 1964. (Doc. No. 7 ¶¶ 39-43.) She has since abandoned this claim, so only her disability
discrimination claims remain. See Doc. No. 46 at 2 n.1.
1
project until funding for the project ran out. Kirby Dep. 15:25-19:1.
To accommodate Plaintiff’s mobility impairments, Defendant provided Plaintiff a
disabled parking decal. (Doc. No. 37 at 4; Doc. No. 46 at 5.) In addition, on two days, Defendant
provided a golf cart and driver to transport Plaintiff between buildings. 2 (Doc. No. 37 at 4; Doc.
No. 46 at 8.) Plaintiff requested additional accommodations, including daily use of a reserved
golf cart and driver to transport Plaintiff between buildings, permission for Plaintiff and/or
Plaintiff’s husband to drive her car on pedestrian sidewalks and park next to building entrances,
permission to use alternative entrances to University buildings, and provision of a teaching
assistant. (Doc. No. 37 at 4; Doc. No. 46 at 5, 10-13.) All of these accommodations were denied.
Id.
On February 10, 2014, Plaintiff emailed her supervisor, Dr. Jianren Zhou, to inquire
about available teaching positions. (Doc. No. 46-21.) In his response, Dr. Zhou stated that there
were four positions available teaching Manufacturing Processes Lab courses. Id. He added that
the positions required “operation of heavy machinery, machine shop (some heavy equipment)
management, and machining and fabrication operations, etc.” Id. Plaintiff subsequently met with
Dr. Zhou to discuss the position but ultimately did not take the position. Pendleton Dep. at
182:8-16.
On March 24, 2014, Plaintiff wrote a letter of resignation. (Doc. No. 37 at 3; Doc. No. 46
at 25.) Her resignation was effective on May 31, 2014. Id. Following her resignation, Plaintiff
contacted Dr. Zhou to inquire about available positions at the University. (Doc. No. 37 at 5; Doc.
No. 46 at 26.) Dr. Zhou told Plaintiff that there were no positions available. Id.
2
Defendant also alleges that it accommodated Plaintiff’s disability by providing her with a
lightweight laptop and a temporary office during the summer. (Doc. No. 37 at 16.) Plaintiff does
not dispute that Defendant provided these things, but she does dispute that they were
accommodations. (Doc. No. 46 at 13-14.)
2
II.
LEGAL STANDARD
Summary judgment is proper when there is no genuine dispute as to any material fact and
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A genuine
issue of material fact exists if a reasonable jury could enter a verdict for the non-moving party.
Crawford v. Formosa Plastics Corp., 234 F.3d 899, 902 (5th Cir. 2000). The court can consider
any evidence in “the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The
Court must view all evidence in the light most favorable to the non-moving party and draw all
reasonable inferences in that party’s favor. Crawford, 234 F.3d at 902.
The party moving for summary judgment bears the burden of demonstrating the absence
of a genuine dispute of material fact. Kee v. City of Rowlett, 247 F.3d 206, 210 (5th Cir. 2001).
If the moving party meets this burden, the non-moving party must go beyond the pleadings to
find specific facts showing that a genuine issue of material fact exists for trial. Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). Summary judgment is appropriate if a party “fails
to make a showing sufficient to establish the existence of an element essential to that party’s
case.” Celotex, 477 U.S. at 322.
III.
ANALYSIS
A. Rehabilitation Act claim
To establish a prima facie case of discrimination under the Rehabilitation Act, a plaintiff
must show that she: (1) was an individual with a disability; (2) was otherwise qualified for the
position; (3) worked for a program or activity receiving federal financial assistance; (4) suffered
an adverse employment action; and (5) was denied the benefits of her employment or subjected
to discrimination solely because of her disability. See Pinkerton v. Spellings, 529 F.3d 513, 519
3
(5th Cir. 2008); Washburn v. Harvey, 405 F.3d 505, 508 (5th Cir. 2007). The Rehabilitation
Act incorporates the standards used in ADA claims, which are subject to the Title VII burdenshifting analysis. Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 396 (5th Cir. 1995). The remedies,
procedures, and rights of Title VII govern Rehabilitation Act claims. Pinkerton, 529 F.3d at
517; 29 U.S.C. § 794a(a)(1).
i. Adverse employment action
Defendant argues that Plaintiff cannot establish the adverse employment actions that she
alleges: constructive discharge and discriminatory compensation. (Doc. No. 37 at 6-13.) For the
reasons explained below, there remain genuine disputes as to material facts regarding both
allegations. Therefore, Defendant is not entitled to summary judgment.
1. Constructive discharge
In order to demonstrate constructive discharge, a plaintiff must prove that “working
conditions [were] so difficult or unpleasant that a reasonable person in the employee's shoes
would have felt compelled to resign.” Bourque v. Powell Electrical Mfg. Co., 617 F.2d 61, 65
(5th Cir. 1980). Factors a court may consider include: (1) demotion; (2) reduction in salary; (3)
reduction in job responsibilities; (4) reassignment to menial or degrading work; (5) badgering,
harassment, or humiliation by the employer calculated to encourage the employee’s resignation;
and (6) offers of early retirement or continued employment on terms less favorable than the
employee’s former status. McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th Cir. 2007); See
also Barrow v. New Orleans S.S. Ass’n, 10 F.3d 292, 297 (5th Cir. 1994). A plaintiff is not
required to prove specific intent, that is, that her employer imposed intolerable working
conditions with the goal of forcing her to resign. Bourque, 617 F.2d at 65. To prevail on a
constructive discharge claim, plaintiff must demonstrate a greater amount of harassment than
4
that required for a hostile work environment claim. Brown v. Kinney Shoe Corp, 237 F.3d 556,
566 (5th Cir. 2001).
In the instant case, there is no allegation that Plaintiff was demoted or that she was
assigned menial or degrading work. Plaintiff does, however, allege reductions in salary and job
responsibilities; badgering, harassment, or humiliation calculated to encourage her resignation;
and offers of early retirement or continued employment on less favorable terms. As explained
below, Plaintiff has presented sufficient evidence to raise a genuine dispute of material fact as to
reductions in salary and job responsibilities and badgering, harassment or humiliation. Therefore,
Defendant is not entitled to summary judgment on Plaintiff’s constructive discharge claim.
a. Reductions in salary and job responsibilities
Plaintiff alleges that she experienced two reductions in job responsibility, resulting in
salary reductions. First, Plaintiff points to her removal from the CRESSE project. (Doc. No. 46 at
28.) According to Kelvin Kennard Kirby, who also worked on the CRESSE project, the grant
that funded the project was intended to last, and did last, only five years. Kirby Dep. 15:2517:23. Once the funding ran out, all but three of the project’s staff ceased work on the project. Id.
at 17:12-19:1. Those who remained on the project were engaged in supervising students, writing
reports, and closing out the project. Id. Defendant argues that Plaintiff’s removal from the project
was an anticipated and non-discriminatory reduction in force and does not support her charge of
constructive discharge. (Doc. No. 37 at 7.) Defendant also points out that other faculty and staff
were moved off the CRESSE project at the same time that Plaintiff was. (Doc. No. 48 at 2 n.2.)
Although these facts raise doubts about Plaintiff’s allegations of discrimination, Defendant does
not completely eliminate the possibility that Plaintiff’s removal from the CRESSE project was
discriminatory. Based on the evidence presented, a reasonable factfinder could conclude that
5
Defendant’s decision not to include Plaintiff in the small number of project staff that remained
after funding ran out was discriminatory. Summary judgment on this issue would therefore be
inappropriate.
Plaintiff’s second alleged reduction in job responsibility occurred when she was removed
from teaching a second class in the Mechanical Engineering department because no golf cart was
available to transport her to that class. (Doc. No. 46 at 28-29.) This resulted in a reduction in
salary, since adjunct professors are paid based on the number of teaching assignments. Id.
Defendant does not refute the allegation that Dr. Zhou’s reason for removing Plaintiff from the
class was related to her mobility impairment. Instead, Defendant counters that Plaintiff’s overall
salary increased over the course of her employment and that Plaintiff had other teaching
opportunities. (Doc. No. 37 at 13; Doc. No. 48 at 2.) These allegations, even if true, do not
prevent a reasonable factfinder from concluding that Plaintiff experienced a discriminatory
reduction in job responsibilities (with a corresponding salary reduction).
Defendant argues that the alleged reductions in job responsibilities and salary do not
support Plaintiff’s constructive discharge claim because she failed to apply for several available
tenure-track positions. (Doc. No. 37 at 9-13.) However, Plaintiff’s failure to apply for those
positions does not bar her claim if such an application would have been a futile gesture because
of a policy of discrimination. See Teamsters v. United States, 431 U.S. 324, 363-66 (1977);
Claiborne v. Ill. Cent. R.R., 583 F.3d 143, 150 (5th Cir. 1978). Plaintiff argues that such is the
case here. (Doc. No. 46 at 30.) Plaintiff points to the fact that Dr. Zhou removed one of her
classes because of her mobility impairment. Id. She also points to the fact that Dr. Zhou
discouraged Plaintiff from pursuing a position teaching a Manufacturing Processes lab course
because it required heavy lifting. Id. Whether or not these allegations are sufficient to prove a
6
policy of discrimination, such that Plaintiff’s application for additional positions would have
been futile, is a question of fact. 3 Therefore, Defendant is not entitled to summary judgment on
this issue.
b. Badgering, harassment, or humiliation
Plaintiff alleges at least three instances of harassment that contributed to her constructive
discharge. First, Plaintiff alleges that Kendall Harris, the Dean of the College of Engineering,
told University President Dr. George Wright that he had observed Plaintiff’s mobility
impairments and, based on her disability, he strongly suggested that she retire. (Doc. No. 7 ¶ 25.)
Plaintiff alleges that President Wright subsequently told Plaintiff’s husband about Dean Harris’s
remarks. Id. There is a fact question as to whether these comments were made; Dean Harris and
President Wright both deny them. (Doc. No. 37 at 8.) The second alleged instance of harassment
was Dr. Zhou’s decision to remove Plaintiff from teaching a second class in the Mechanical
Engineering department because no golf cart was available to transport her to that class. (Doc.
No. 46 at 28-29.) Third, Plaintiff alleges that Dr. Zhou refused to consider her for a position
teaching a Manufacturing Processes lab course because it required heavy lifting. (Doc. No. 48 at
29.) Plaintiff testified that, in a meeting to discuss the position, “all [Dr. Zhou] could talk about
was lifting. He just made me feel like I couldn’t do the job because I wasn’t physically able to do
it.” Pendleton Dep. at 182:8-16. 4
3
Defendant argues that Plaintiff cannot meet her burden regarding a policy of discrimination,
citing Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398 (5th Cir. 1999). In that case, the
Fifth Circuit rejected plaintiff’s futile gesture argument where a supervisor told the plaintiff that
she would “probably be better off” in her old position. Shackelford, 190 F.3d at 406. Whereas the
supervisor’s comments in Shackelford were subject to multiple interpretations, here Plaintiff has
alleged multiple supervisor comments about, and employment decisions based on, her disability.
Therefore, Shackelford cannot resolve the issue of whether it would have been a futile gesture for
Plaintiff to apply for certain tenure-track positions.
4
Defendant does not deny that Dr. Zhou made the alleged comments. Instead, Defendant alleges
7
Defendant argues that, even if the alleged comments were made, they do not rise to the
level of compelling a reasonable person to resign. Id. 5 Defendant further argues that Plaintiff
“could have resolved [the alleged badgering, harassment, or humiliation] herself with the Dean
or her supervisor, Dr. Zhou,” particularly in light of the fact that she had previously received
positive feedback and had never been threatened with termination. Id. at 8-9. However,
Plaintiff’s ability or opportunity to address these issues with her supervisors is immaterial to the
question of whether she experienced harassment. Moreover, Defendant has not shown that, as a
matter of law, the alleged statements from Dean Harris and Dr. Zhou would not compel a
reasonable person to resign. As such, this issue should be resolved at trial, not at summary
judgment.
c. Offer of early retirement or continued employment on
unfavorable terms
Plaintiff argues that Dean Harris’s alleged strong suggestion that she retire constituted
“an ultimatum that, in effect, forced her to end her long-standing employment at the University.”
(Doc. No. 46 at 30.) She states that, because Dean Harris and President Wright were in positions
of great influence within the University, she felt pressured to resign based on Dean Harris’s
comments. Id. at 30-31. As noted above, a reasonable factfinder could find Dean Harris’s alleged
comments constituted badgering, harassment, or humiliation. However, no reasonable factfinder
that those positions were already filled by the time Plaintiff inquired. (Doc. No. 37 at 12-13.)
Plaintiff disputes this, and the email from Dr. Zhou is ambiguous as to whether the positions
were filled. (Doc. No. 46 at 30; Doc. No. 46-21.) Because this fact is in dispute, and viewing the
evidence in the light most favorable to the non-movant, the Court assumes for purposes of
Defendant’s Motion for Summary Judgment that the positions were not filled at the time Plaintiff
inquired.
5
Defendant cites Shryer v. Univ. of Tex. Sw. Med. Ctr. at Dallas, 587 Fed. App’x 151 (5th Cir.
2014), in which the plaintiff’s supervisor expressed frustration at the plaintiff’s inability to carry
out her duties due to her mobility impairment and said, “one of us has got to go.” (Doc. No. 37 at
8; Doc. No. 48 at 3.) This comment is not similar enough to Dean Harris’s or Dr. Zhou’s alleged
comments to foreclose a finding in Plaintiff’s favor as a matter of law.
8
could find that Dean Harris’s comments constituted an offer of early retirement or continued
employment on unfavorable terms. Therefore, this factor should not be counted toward
Plaintiff’s claim of constructive discharge.
d. Evidence that working conditions were tolerable
Apart from challenging the factors listed above, Defendant makes several additional
arguments to refute Plaintiff’s claim of constructive discharge. Defendant notes that Plaintiff
continued to work at the University for five years despite the alleged harassment and reductions
in job responsibilities and salary. (Doc. No. 37 at 7, 10.) Defendant further notes that Plaintiff
wrote positive things about her experience in her retirement letter and that Plaintiff inquired
about teaching positions after her retirement. Id. Once again, Defendant’s arguments raise
questions about Plaintiff’s allegation of constructive discharge, but do not rise to such a level that
no reasonable factfinder could find for Plaintiff. As such, they do not entitle Defendant to
summary judgment.
2. Compensation
In addition to her constructive discharge claim, Plaintiff alleges that she suffered an
additional adverse employment action in the form of discriminatory compensation. Plaintiff cites
her removal from the CRESSE project and from teaching a second class in the Mechanical
Engineering department due to her lack of golf cart. (Doc. No. 46 at 31.) Plaintiff’s
compensation claim has significant overlap with her constructive discharge claim, in that she
alleges that Defendant’s removal of Plaintiff from certain positions within the University and
refusal to consider her for others resulted in lower compensation. For the reasons stated above,
Plaintiff has raised a genuine dispute as to material facts regarding these employment decisions.
Therefore, summary judgment on Plaintiff’s compensation claim is not appropriate.
9
ii. Causation
Defendant next argues that, even if Plaintiff can demonstrate one or more adverse
employment actions, she cannot satisfy the Rehabilitation Act’s causation standard. In order to
obtain relief under the Rehabilitation Act, a plaintiff must prove that she experienced an adverse
employment action “solely by reason of her…disability.” 29 U.S.C. § 794(a) (emphasis added).
The Fifth Circuit has held that this is a higher causation standard than the one articulated in Title
VII of the Civil Rights Act of 1964. Soledad v. U.S. Dep’t of Treasury, 304 F.3d 600, 503-04
(5th Cir. 2002). Whereas a Title VII plaintiff is only required to show that her protected status
was a “motivating factor” for an employment decision, even though other factors were present,
see 42 U.S.C. § 2000e-2(m), a Rehabilitation Act plaintiff must show that her disability was the
sole factor. Id.
Since Soledad, some district courts have held that a plaintiff fails to meet her burden on
causation where she alleges another form of illegal discrimination, such as in a Title VII claim.
See, e.g., Shah v. Univ. of Tex. Sw. Med. Sch., 54 F. Supp.3d 681, 685 (N.D. Tex. 2014) (plaintiff
who alleged discrimination on the basis of both disability and ethnicity could not prevail under
the Rehabilitation Act). Therefore, Defendant argues, Plaintiff’s Title VII allegations foreclose
her from recovering under the Rehabilitation Act. (Doc. No. 37 at 13-14.) Without weighing in
on whether a Rehabilitation Act plaintiff may recover when alleging multiple forms of illegal
discrimination, the Court finds that Defendant’s argument is moot because Plaintiff has dropped
her Title VII claim. 6 See Doc. No. 46 at 2 n.1.
6
Defendant suggests that Plaintiff’s Title VII claim is inseparable from her Rehabilitation Act
claim with regard to compensation. (Doc. No. 48 at 6.) However, the two compensation
allegations are distinct. Whereas Plaintiff alleged sex discrimination with regard to her initial
position and resulting salary, her Rehabilitation Act claim is related to her subsequent
assignments. See Doc. No. 46 at 32.
10
Defendant also argues that Plaintiff cannot prevail on her constructive discharge claim
because other factors, including personal financial considerations, motivated her retirement.
(Doc. No. 37 at 14-15; Doc. No. 48 at 6.) This argument mischaracterizes Plaintiff’s testimony.
Plaintiff stated in her deposition,
The reason I retired was I was forced into retirement because, like I said, my classes were
reduced. They didn’t give me any accommodation, you know, that I’d asked for. And I
just really felt being—you know, being disabled, I just really felt—you know, it affected
me mentally. They didn’t give me what I was supposed to get. And plus I didn’t have a
teaching assistant. I didn’t have any of these accommodations. And plus financially. Here
I am I’m used to making all this money, you know, working full-time, research going; and
all of a sudden I’m reduced to teaching two classes. Income is cut in half…. It was not
my intent to retire, but they just didn’t do what they were supposed to do. They didn’t
accommodate me. They cut my class. They cut my salary. They did these things to me.
So that’s why I was forced to retire.
Pendleton Dep. at 145:24-147:6 (emphasis added). As this testimony makes clear, Plaintiff’s
personal financial considerations motivating her retirement were directly related to the alleged
discrimination. It was not simply a matter of “balancing of potential incomes between working
and retiring,” as Defendant asserts. See Doc. No. 37 at 14-15. Rather, Plaintiff testified that,
because of the discriminatory adverse employment actions that she alleges in this case, her salary
was reduced to the point that it did not make sense for her to continue working. Therefore,
Defendant is not entitled to summary judgment on the basis of this testimony.
B. ADA claim
The ADA requires employers to provide “reasonable accommodations to the known
physical or mental limitations of an otherwise qualified individual with a disability who is an
applicant or employee” unless doing so “would impose an undue hardship” to the employer. 42
U.S.C. § 12112(b)(5)(A). Barber v. Nabors Drilling U.S.A., Inc., 130 F.3d 702, 706 (5th
Cir.1997). To prevail on a claim under the ADA, the plaintiff must show: (1) that she could
perform the essential functions of the job in spite of her disability, or (2) that a reasonable
11
accommodation of her disability would have enabled her to perform the essential functions of the
job. Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1093 (5th Cir. 1996). Reasonable
accommodations may include “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.” 42 U.S.C. §
12111(9)(B). Defendant argues that it is entitled to summary judgment on Plaintiff’s ADA
claims because her requests for accommodation—including a reserved golf cart and driver,
permission to park on sidewalks, permission to use alternative building entrances, and a teaching
assistant—were not reasonable. For the reasons explained below, summary judgment on
Plaintiff’s ADA claims is denied.
As a preliminary matter, Defendant argues that Plaintiff’s claims related to her requests
for a golf cart, driver, and permission to park on sidewalks are time-barred under the
Rehabilitation Act’s two-year statute of limitations. (Doc. No. 37 at 19.) Under Federal Rule of
Civil Procedure 8(c), however, a statute of limitations defense constitutes an affirmative defense
that “must be set forth in a responsive pleading or be deemed waived.” Funding Sys. Leasing
Corp. v. Pugh, 530 F.2d 91, 95 (5th Cir. 1976). Defendant did not set forth its statute of
limitations defense in its Answer, and the Court denied Defendant’s motion for leave to amend
its Answer. See Doc. Nos. 26, 49. Therefore, Defendant has waived this defense and is not
entitled to summary judgment.
During Plaintiff’s employment, the office of the Dean of Engineering owned one golf
cart. (Doc. No. 37 at 16 n. 61.) The University as a whole owned between 50 and 94 golf carts.
Id. Dean Harris maintained a policy of allowing individuals to use the Dean’s office golf cart on
12
a first-come, first-served basis, and Plaintiff had access to the Dean’s office golf cart on the same
terms as other employees. Id. at 16-17. Plaintiff requested that a golf cart be available for her use
when she needed it to get around the campus. (Doc. No. 46 at 32-33.) She also requested that a
driver be made available. Id. Plaintiff suggested that a student employee may have been able to
serve as a driver. Id.
Defendant provides no support for its argument that a reserved golf cart was not a
reasonable accommodation. The Court therefore declines to grant summary judgment on that
question and focuses on Plaintiff’s request for a driver. The Fifth Circuit has held that “an
accommodation that would result in other employees having to work harder or longer is not
required under the ADA.” Turco, 101 F.3d at 1094. There remains a question of fact as to
whether providing a driver would have caused any other employee to work harder or longer.
Defendant has not proven that there were no University employees who could have added this
task to their other responsibilities without extending their hours. Nor has Defendant refuted
Plaintiff’s assertion that unused work hours for students employed by the University could be
used to provide Plaintiff with a driver. Because questions of material fact remain, the Court
declines to grant summary judgment on this accommodation.
Next, Defendant denied Plaintiff’s requests for permission to drive on pedestrian
sidewalks and to park adjacent to University buildings. (Doc. No. 37 at 18-19.) Defendant argues
that the disabled parking spots were sufficiently close to the buildings. Id. Defendant
acknowledges that vendors were permitted to park adjacent to University buildings but maintains
that Plaintiff’s request to park there every day was unreasonable. Id. Defendant also notes that
Plaintiff’s requested accommodation was greater than that received by other employees with
mobility impairments. Id. Once again, however, the question of whether this accommodation was
13
reasonable is properly left to the jury. Defendant has not shown that Plaintiff’s request was
unreasonable as a matter of law. As such, the Court declines to grant summary judgment.
Third, Defendant denied Plaintiff’s request for permission to use alternative entrances to
University buildings. Plaintiff requested permission to use the maintenance entrance to one
building (since that entrance lacked steps) and the emergency exit of another. (Doc. No. 46 at
34.) Defendant argues that rekeying emergency exits would violate code and impact facility
security. (Doc. No. 48 at 8.) Defendant further argues that using these alternative entrances were
not necessary, since Plaintiff was able to perform her job for years without them. Id. Balancing
Plaintiff’s need for accommodation against the hardship they would impose on Defendant and
assessing how essential these accommodations were to Plaintiff’s job performance are tasks that
are best left to the jury. Therefore, summary judgment is denied as to this issue.
Finally, Plaintiff requested a teaching assistant to write on the blackboard, set up and run
PowerPoint presentations, and grade papers. Pendleton Dep. at 54:1-55:3. Defendant argues that
grading papers is an essential function of teaching. Doc. No. 37 at 20; see Turco, 101 F.3d at
1094 (“The ADA does not require an employer to relieve an employee of any essential functions
of his or her job”). Defendant further argues that there are multiple ways to present material to
students, so Defendant was not required to accommodate Plaintiff’s request for a teaching
assistant to use the blackboard or PowerPoint presentations. Id. These are fact questions. As
such, Defendant is not entitled to summary judgment.
Defendant argues that Plaintiff refused to engage with Defendant to find the best means
of accommodating her disability. The ADA’s regulations require both the employer and the
employee to engage in an “interactive process” to craft a reasonable accommodation. 29 U.S.C. §
1630.2(o)(3). According to Defendant, Plaintiff’s refusal to accept Defendant’s accommodations
14
and insistence on being provided a reserved golf cart, driver, access to adjacent parking and
alternative entrances to buildings, and a teaching assistant constitute a refusal to engage in the
required process. (Doc. No. 37 at 20-21. This, too, is a fact question and is therefore left to the
jury.
IV.
CONCLUSION
For the reasons set forth above, Defendant Prairie View A&M University’s Motion for
Summary Judgment (Doc. No. 37) is DENIED.
IT IS SO ORDERED.
SIGNED at Houston, Texas on this the 7th day of December, 2016.
HON. KEITH P. ELLISON
UNITED STATES DISTRICT JUDGE
15
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?