Seghers v. Hilti Inc
MEMORANDUM AND ORDER (Signed by Judge Nancy F Atlas) Parties notified.(sashabranner, 4)
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
October 17, 2017
David J. Bradley, Clerk
§ CIVIL ACTION NO. 4:16-CV-00244
MEMORANDUM AND ORDER
There are two motions currently before the Court in this employment
discrimination case. The first motion is Defendant/Counter-Plaintiff Hilti, Inc.’s
(“Hilti” or “Defendant”), Motion for Summary Judgment [Doc. # 56] (the
“Defendant’s Motion”) addressing claims asserted by Plaintiff/Counter-Defendant
David Seghers (“Plaintiff”) in Plaintiff’s First Amended Complaint (the “Amended
Complaint”) [Doc. # 16]. Plaintiff filed a Response [Doc. # 65] and Defendant has
filed a Reply [Doc. # 69]. The second motion is Defendant’s Objections and
Motion to Strike Plaintiff’s Summary Judgment Evidence (the “Motion to Strike)
[Doc. # 70]. Plaintiff filed a timely response [Doc. # 73], to which Defendant
replied [Doc. # 74].
The motions are now ripe for decision. Having considered the parties’
briefing, the applicable legal authorities, and all matters of record, the Court
concludes that Defendant’s Motion should be granted and that the Motion to
Strike should be denied as moot.
Plaintiff Seghers filed his original complaint (the “Original Complaint”) on
January 27, 2016. Original Complaint [Doc. #1]. In the Original Complaint,
Plaintiff alleged interference and retaliation claims under the Family Medical
Leave Act (“FMLA”), 29 U.S.C. § 2611 et seq., against Defendant, his former
employer. The interference and retaliation claims were predicated on an alleged
workplace injury that Plaintiff suffered on January 13, 2004 and his diagnosis with
an unspecified “acute medical condition” as of January 22, 2014.
On June 15, 2016, Defendant filed its Original Answer and Counterclaims
(the “Original Counterclaim”), asserting various state law claims against Plaintiff
relating to his allegedly improper use of a corporate credit card that was issued to
him in connection with his employment with Defendant. Original Answer [Doc. #
10], at ECF 9-13. Plaintiff answered the Original Counterclaim on July 6, 2016.
Plaintiff/Counter-Defendant’s Original Answer to Counterclaims [Doc. # 15].
On August 31, 2016, Plaintiff filed the Amended Complaint.
Amended Complaint, Defendant maintained the FMLA interference and retaliation
claims he had asserted in the Original Complaint, and added claims for
discrimination, failure to accommodate and retaliation under both the Americans
with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101 et seq., and the Texas
Labor Code. Like Plaintiff’s FMLA claims, his ADA and Texas Labor Code
claims in the Amended Complaint are also based on Plaintiff’s alleged January
2014 workplace injury and diagnosis with an “acute medical condition.”
On September 13, 2016 Defendant filed its Answer and Counterclaims to
Plaintiff’s First Amended Complaint (the “Counterclaims”) responding to
Plaintiff’s new ADA and Texas Labor Code claims and re-alleging the
counterclaims that were raised in the Original Counterclaim. Counterclaims [Doc.
Also on September 13, 2016, Defendant moved to dismiss (the “Motion to
Dismiss) Plaintiff’s ADA and Texas Labor Code claims asserted in the Amended
Complaint on the grounds that the Court lacked subject matter jurisdiction and that
Plaintiff failed to allege a claim upon which relief could be granted. Motion to
Dismiss [Doc. # 18]. On November 16, 2016, the Court issued a Memorandum
and Order [Doc. # 21], grating the Motion to Dismiss with respect to Plaintiff’s
Texas Labor Code claims but denying it with respect to Plaintiff’s ADA claims.
After the close of discovery, the Defendant’s Motion and the Motion to
Strike were filed. In Defendant’s Motion, Defendant seeks summary judgment on
Plaintiff’s FMLA and ADA claims, the entirety of the remaining claims in the
In the Motion to Strike, Defendant asks the Court to
disregard certain summary evidence that Plaintiff presented in his response to
The following facts are not subject to genuine dispute for purposes of
Plaintiff began his employment with Defendant as an account manager in
May 2011. Plaintiff’s duties as an account manager, a role in which he worked
from home and was afforded meaningful autonomy, included scheduling customer
visits, marketing and selling Defendant’s products to existing customers and
expanding Defendant’s customer base.
When Plaintiff began working for
Defendant in May 2011 he completed a series of onboarding programs, including
multiple trainings pertaining to Defendant’s travel and expense policy [Doc. # 561], at ECF 8-12.
As part of his employment with Defendant, Plaintiff was issued a corporate
credit card to incur work-related expenses. There is no dispute that Defendant’s
“official” expense reimbursement policy that was in place during Plaintiff’s
employment with Defendant prohibits using the corporate credit card to buy gift
cards [Doc. # 56-1], at ECF 68, 106, nor is there a dispute that over the course of
his employment with Defendant, Plaintiff used his corporate credit card to
purchase gift cards on multiple occasions.1 There is also no dispute that other
account managers employed by Defendant used his or her corporate credit card
over the same time period to purchase gift cards.2 The parties, however, fiercely
disagree on the extent to which Defendant (i) enforced its “no gift card” policy
among its account managers, (ii) reminded Plaintiff and ensured that he was aware
of the “no gift card” policy during the course of his employment with Defendant
and (iii) approved (explicitly or tacitly) Plaintiff’s purchases of gift cards with his
corporate credit card throughout his tenure with Defendant.
In May 2013, Plaintiff began reporting to Daniel Schkade, the fifth
supervisor he had in his first two years of working for Defendant. Although it is
not clear when he began creating a record, Schkade noted several incidents in
October 2013 involving Plaintiff that he found to be problematic or unprofessional
[Doc. # 56-1], at ECF 15-16, 127. On October 18, 2013, Schkade gave Plaintiff
his performance review. Schkade rated Plaintiff as “below expectations” in the
areas of growth, differentiation, working with others, developing yourself and
See David Seghers 2013 Gift Card Purchase Summary [Doc. # 55-5], at ECF 2;
Segher’s Gift Card Purchase Summary 2011-2014 [Doc. # 55-9], at ECF 2
(showing over twenty separate purchases of gift cards, the total value of which
See Hilti Expense Reports [Doc. # 55-6] (showing purchases of gift cards by
Defendant’s employees Cliff A. Roberts, Tony D. McMenomy, Gregory D.
Tresler, Christopher Strait, Patrick A Naranjo and Courtney M. Malone).
others and living our culture [Doc. # 56-1], at ECF 123-125. Schkade rated
Plaintiff as “meets expectations” in the areas of productivity and people. Id. For
the categories he assessed himself, Plaintiff rated himself as “meets expectations.”
On December 2, 2013, Plaintiff underwent an outpatient dermatological
laser procedure to remove Actinic Keratosis, which Plaintiff describes as
precancerous lesions, from his arms and hands. Dr. Paul Friedman, Plaintiff’s
dermatologist, wrote Plaintiff a note excusing him from work on the date of the
procedure. [Doc. # 65-2], at ECF 3. Dr. Friedman’s note also stated that Plaintiff
would need to stay out of the sun for one to two weeks. Id.
On December 10, 2013, Schkade contacted Plaintiff to attempt to arrange a
“ride along” between Plaintiff and a new job candidate for the following week
[Doc. # 56-1], at ECF 128. Plaintiff informed Schkade he could not attend a ride
along then because it involved going outside and he was going to be having a
medical procedure that would require him to stay out of the sun. Id. There is no
evidence that Plaintiff underwent any medical procedures between December 2,
2013 and December 30, 2013. There is also no evidence that Plaintiff discussed
his December 2 dermatological procedure with Schkade before December 10.
On December 18, 2013, Plaintiff emailed Defendant’s annual meeting team
in charge of logistics for Defendant’s upcoming company-wide meeting in Las
Vegas and informed them that he “may not be able to the meeting because of a
medical procedure” [Doc. # 56-1], at ECF 135. Schkade was not copied on the
email. Plaintiff inquired whether he should cancel immediately or “wait to see if it
is viable for me to attend.” Id. That same day, Plaintiff and Schkade had a brief
email exchange regarding Plaintiff’s purchase of restaurant gift cards [Doc. # 561], at ECF 137.
On December 30, 2013, Plaintiff underwent a second outpatient
dermatological laser procedure, this time to remove Acitinic Keratosis from his
face [Doc. # 65-2], at ECF 29-32. Dr. Friedman wrote Plaintiff a note excusing
him from work on the day of the procedure [Doc. # 65-2], at ECF 2. The note also
stated that Plaintiff was to avoid the sun for two to three weeks. Id. Plaintiff does
not contend that either of the dermatological procedures impeded his ability to
work [Doc. # 56-1], at ECF 17-20. That same day, Plaintiff also received a
response to his December 18 email from Defendant’s annual meeting team, who
inquired whether Plaintiff still intended to cancel his trip and stated generally
“[m]edical reasons [for cancelling] are totally understandable” [Doc. # 56-1], at
On December 31, 2013, Plaintiff emailed Defendant’s annual meeting team
to officially inform them that he would not be able to attend the upcoming annual
meeting in Las Vegas due to a “procedure” he had the previous day. Id. Plaintiff
copied Schkade on the email, but had not previously discussed with Schkade the
possibility that he would not be able to attend the meeting. Plaintiff did not specify
what the procedure was in the email, but he told Schkade in a separate
conversation that day that it was the same procedure he was supposed to have had
a few weeks prior that made him unavailable to participate in the ride along [Doc.
# 56-1], at ECF 128.
On January 7, 2014, Schkade emailed Carolyn Hicks, Defendant’s credit
card administrator, and asked her to pull some of Plaintiff’s expense records
because Plaintiff had some “questionable charges on his credit card” [Doc. # 56-1],
at ECF 139. Later that day, Schkade emailed Kendra Deaton, one of Defendant’s
Human Resources representatives, regarding Plaintiff [Doc. # 56-1], at ECF 126.
In the email, Schkade characterized Plaintiff’s work performance as “the worst
case of job neglect I have ever seen.” Id. Attached to Schkade’s email were notes
and other emails documenting incidents dating back to October 1, 2013 involving
Plaintiff that Schkade believed would justify firing Plaintiff for cause.
Schkade asked Deaton to “PLEASE help me take care of this.” Id.
On January 10, 2014, Deaton emailed Plaintiff to request additional
information about gift cards he may have given to employees of one of
Defendant’s municipal government clients [Doc. # 56-1], at ECF 143. Plaintiff
responded to the inquiry on January 13, stating the clients he had given gift cards
to were not government employees. Id.
On January 13, 2014, two weeks after his December 30 dermatological
procedure, Plaintiff claims he injured his back while lifting tools out of his car at a
worksite. Plaintiff did not notify Schkade, Deaton or anyone else in Defendant’s
human resources or legal departments on January 13 that he had suffered a
On the morning of January 14, 2014, Plaintiff emailed Deaton three times;
once regarding the recipients of some of the gift cards he had purchased [Doc.
# 56-1], at ECF 147, once regarding a meeting [Doc. # 56-1], at ECF 148, and once
to provide a doctor’s note excusing his absence from the annual meeting in Las
Vegas [Doc. # 56-1], at ECF 149. With respect to the missed meeting in Las
Vegas, Plaintiff wrote, “[p]lease let me know how you would like this handled as
far as the time sheet goes.” Id. Plaintiff did not notify Deaton or Schkade of the
back injury he allegedly had suffered while working the prior day.
On January 15, 2014, Hicks, Deaton and Schkade exchanged emails
regarding Plaintiff’s historical use of his corporate credit card to purchase gift
cards in violation of Defendant’s policy [Doc. # 56-1], at ECF 154-155.
Consistent with every other communication among Defendant’s employees in the
summary judgment record, there is no discussion among Hicks, Deaton and
Schkade of Plaintiff’s dermatological procedures or of Plaintiff’s health generally.
On January 16, 2014, Plaintiff met with Schkade and Deaton at a local
During the meeting, Plaintiff was informed that he was being
suspended, effective immediately, without pay on the grounds that he had violated
Defendant’s expense policy by purchasing gift cards with his corporate credit card
[Doc. # 56-2], at ECF 18.
On January 20, 2014, Deaton emailed Hicks and Schkade at 1:59 p.m. and
stated that Defendant was “moving forward with separation of the team member,”
a reference to Plaintiff [Doc. # 56-1], at ECF 153. Deaton asked Hicks to ensure
that Plaintiff’s corporate credit card was cancelled, and Hicks confirmed at 2:37
p.m. that Plaintiff’s corporate credit card had been “[s]hut down” as of “a few
minutes ago.” Id.
On January 21, 2014, Plaintiff was examined by Dr. Robin Moore, his
primary care physician.
According to Dr. Moore, Plaintiff “present[ed] with
anxiety and hypertension” [Doc. # 56-1], at ECF 160.
Under “Past Medical
History,” Dr. Moore wrote “[r]eviewed, no changes.” Id. There is no mention of
Plaintiff’s December 2013 dermatological procedures or precancerous lesions in
Dr. Moore’s notes from the January 21 exam or in any of the other medical records
from Dr. Moore that have been submitted to the Court as summary judgment
evidence [Doc. # 56-1], at ECF 157-179. There is also no mention of Plaintiff’s
alleged January 13 back injury. At some point on January 21, Deaton attempted to
call Plaintiff and inform him that his employment was being terminated, but she
was unsuccessful in reaching him [Doc. # 56-1], at ECF 182.
On the morning of January 22, 2014, Deaton emailed Plaintiff and requested
that he call her “as soon as possible” [Doc. # 56-11], at ECF 2. Deaton noted that
she had “been attempting to reach” Plaintiff via his personal phone number. Id.
Plaintiff returned Deaton’s call and left a message that he would call back that
afternoon when he was available” [Doc. # 56-1], at ECF 182. After not receiving
another call from Plaintiff, Deaton emailed Plaintiff at 4:50 p.m. stating that “[i]t is
imperative that we speak soon. Please call me back first thing in the morning.” Id.
On the afternoon of January 22, Plaintiff underwent a medical examination
by Dr. Jonathan Lee, an orthopedist. Plaintiff’s “chief complaint” was low back
pain and radiating pain that resulted from an alleged onsite work injury on January
13, 2014 [Doc. # 56-1], at ECF 180. According to Dr. Lee, Plaintiff complained of
severe pain, which he described as “sharp, stabbing and aching,” and constant
since his injury on January 13. Id. There is no mention of Plaintiff’s December
2013 dermatological procedures in Dr. Lee’s note, nor is there any mention of any
issues related to Plaintiff’s skin. 3
Also on January 22, and subsequent to his examination by Dr. Lee, Plaintiff
faxed and emailed two doctors’ notes to Deaton that indicated that Plaintiff would
need to miss several weeks of work. The first note was from Dr. Lee, dated the
same day, which stated that due to lumbar pain, Plaintiff would need to miss three
weeks of work [Doc. # 56-1], at ECF 184. In the accompanying fax cover sheet,
Plaintiff wrote that the reason Dr. Lee was keeping him out of work was “due to an
injury I sustained while working on a site 1/13/2014” [Doc. # 56-1], at ECF 183.
There is no dispute that Plaintiff’s fax on January 22, 2014 was the first time he
notified Defendant that he had allegedly suffered a workplace injury on January 13
[Doc. # 56-1], at ECF 43-50.
The second note was from Dr. Moore, dated January 21, 2014, which stated
that Plaintiff had “recently developed an acute medical issue” and would need to
both miss two weeks of work and maintain a low stress environment [Doc. # 56-1],
at ECF 186. Dr. Moore did not provide any specificity as to what the “acute
medical issue” was. Id. Plaintiff wrote on the cover sheet that Dr. Moore had put
See Medical Notes of Dr. Jonathan Lee [Doc. # 56-1], at ECF 180-181 (noting
under “Integumentary” that “[t]he patient denies any rashes, skin ulcers, lumps or
psoriasis” and under “Skin” that “[t]here are no rashes, ulcerations or lesions in the
him “on leave due to a medical condition,” but provided no specificity as to what
the “medical condition” was. Id.
On the morning of January 23, 2014, Deaton again called Plaintiff. Plaintiff
responded to Deaton later that day via email [Doc. # 56-1], at ECF 188.
telling Deaton that he did not appreciate the “threatening voicemails” that she had
left him earlier that day, Plaintiff asked Deaton to “[p]lease advise how you would
like to proceed with paperwork.” Id. Plaintiff also stated that he would prefer to
keep all communication between the two “in written form.” Id.
On the morning of January 24, 2014, Deaton emailed Plaintiff to provide
him the contact information for Susan Johnson, an employee of Defendant who
would assist Plaintiff with his workplace injury claim [Doc. # 56-1], at ECF 187.
Deaton again emphasized her several attempts to reach Plaintiff by phone and
again asked that he return her call. Id.
On January 28, 2014, Deaton emailed Plaintiff at 9:10 a.m. informing him
that his employment with Defendant had been terminated effective January 16,
2014 [Doc. # 56-1], at ECF 194. Deaton noted in her email that she would have
preferred to “handle this matter over the phone,” and detailed her unsuccessful
attempts to get in touch with Plaintiff since January 21, 2014. Id. Deaton also
wrote that Plaintiff’s termination would “not affect your rights to file a worker’s
compensation claim,” and encouraged Plaintiff to reach out to Johnson to file a
claim if he had not done so already. Id.
Fifteen minutes later, at 9:25 a.m., Plaintiff emailed Deaton regarding
“medical leave” [Doc. # 56-12], at ECF 2. Plaintiff reiterated that he was under
medical supervision and requested again that Deaton email to him “any and all
paperwork, including your FMLA forms, necessary to complete for medical
leave.” Id. Plaintiff did not acknowledge Deaton’s termination email. Later that
same day, Plaintiff also reached out to Johnson to initiate a workers compensation
claim related to his alleged January 13 injury [Doc. # 56-1], at ECF 189-190.
SUMMARY JUDGMENT STANDARD
Rule 56 of the Federal Rules of Civil Procedure mandates the entry of
summary judgment, after adequate time for discovery and upon motion, against a
party who fails to make a sufficient showing of the existence of an element
essential to the party’s case, and on which that party will bear the burden at trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Little v. Liquid Air Corp., 37
F.3d 1069, 1075 (5th Cir. 1994) (en banc); see also Baton Rouge Oil and Chem.
Workers Union v. ExxonMobil Corp., 289 F.3d 373, 375 (5th Cir. 2002). “The
court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” FED. R. CIV. P. 56(a); see Celotex Corp., 477 U.S. at 322–23; Weaver v.
CCA Indus., Inc., 529 F.3d 335, 339 (5th Cir. 2008). “An issue is material if its
resolution could affect the outcome of the action. A dispute as to a material fact is
genuine if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” DIRECT TV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2006)
(internal citations and quotation marks omitted).
Plaintiff asserts four causes of action in the Amended Complaint, one
relating to the FMLA and three related to the ADA. Defendant has moved for
summary judgment on all four causes of action. The Court addresses Defendant’s
Motion with respect to the FMLA claims and the ADA claims in turn.
Plaintiff Has Abandoned His FMLA Claims
Defendant dedicated a significant portion of its summary judgment briefing
to address Plaintiff’s FMLA interference and retaliation claims.
Motion [Doc. # 56], at ECF 26-41.
In his response to Defendant’s Motion,
Plaintiff did not address any of the legal arguments or summary judgment evidence
Defendant presented with respect to Plaintiff’s FMLA claims.
Plaintiff’s Response [Doc. # 65]. Having failed to counter Defendant’s arguments
and evidence against his FMLA claims, the Court concludes that Plaintiff has
abandoned his FMLA claims. See Black v. N. Panola Sch. Dist., 461 F.3d 584,
588 (5th Cir. 2006) (holding failure to pursue claim beyond complaint constituted
abandonment); Vela v. City of Houston, 276 F.3d 659, 679 (5th Cir. 2001) (same);
Criner v. Texas--New Mexico Power Co., 470 F. App’x 364, 366 (5th Cir. 2012)
(affirming district court finding that Plaintiff had abandoned disparate treatment
claims “because [the plaintiff] did not address them in her response to the
[defendant]’s motion for summary judgment”); Scales v. Slater, 181 F.3d 703, 708
n.5 (5th Cir. 1999) (noting that the plaintiff abandoned her disparate impact claim
in district court when she neither contested defendant's arguments for dismissal of
that claim nor demonstrated that her statistical evidence demonstrated pretext); see
also FED. R. CIV. P. 56(a) (“[a] party asserting that a fact cannot be or is genuinely
disputed must support the assertion by . . . citing to particular parts of materials in
the record.”). As such, Defendant’s Motion is granted with respect to Plaintiff’s
In the event that Plaintiff had not elected to abandon his FMLA claims, dismissal
would have been warranted on the merits. There is no dispute, genuine or
otherwise, that Defendant did not become aware of Plaintiff’s alleged January 13,
2014 workplace injury or amorphous “acute medical condition” until Plaintiff
faxed and emailed notes from Dr. Lee and Dr. Moore to Deaton on January 22,
2014. There is also no genuine dispute that Defendant decided to terminate
Plaintiff, and began implementing that decision, no later than January 20, 2014,
two days before Plaintiff gave Defendant notice of any alleged January 13 injury
or “acute medical condition,” or Plaintiff’s intent to request medical leave.
Defendant also attempted to reach Plaintiff on January 21, 2014 and on January
22, 2014, before Plaintiff faxed and emailed the two doctor notes to Deaton, to
inform him that his employment was being terminated. In short, the summary
judgment evidence is undisputed that there was no causal relationship between
Plaintiff’s alleged workplace injury or “acute medical condition” (which, even
after discovery, remains unspecified) or his request for medical leave, on the other
Plaintiff Has Waived The Right to Assert Any Claims Based on
the December 2013 Dermatological Procedures
Defendant next asserts that any of Plaintiff’s FMLA or ADA claims
predicated on his December 2013 dermatological procedures should be disregarded
because such claims are not presented in the Amended Complaint. Defendant’s
Motion [Doc. # 56], at ECF 25-26. In Plaintiff’s Response, Plaintiff contends that
such claims are properly before the Court because Defendant had sufficient notice
hand, and Defendant’s decision to terminate Plaintiff, which predated any
knowledge Defendant had of Plaintiff’s intentions or alleged conditions. Plaintiff
has produced no evidence that he was entitled to FMLA leave when his request for
leave came after Defendant had decided to terminate him for entirely unrelated
reasons. See Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001) (holding
that employers “need not suspend previously planned” employment actions upon
learning of an employment-related claim and that an employer “proceeding along
lines previously contemplated, though not yet definitively determined, is no
evidence whatever of causality.”).
Any FMLA claims Plaintiff may have asserted based on his December 2013
dermatological procedures would also fail as a matter of law. Assuming such
claims are even properly before the Court, there is no evidence that Plaintiff ever
requested FMLA leave in connection with his December 2013 dermatological
procedures. Additionally, Plaintiff’s December 2013 dermatological procedures,
and any medical leave the might necessitate, were entirely foreseeable and not the
results of an emergency. “When the need for FMLA leave is foreseeable, an
employee must provide her employer with no less than 30 days advance notice.”
Satterfield v. Wal-Mart Stores, Inc., 135 F.3d 973, 975 (5th Cir. 1998). Plaintiff
never provided Defendant with the requisite advanced notice in connection with
any actual or arguable request for FMLA leave based on his December 2013
dermatological procedures, and as such, any FMLA claims based on those
procedures fail as a matter of law.
that his December 2013 dermatological procedures were the basis of his ADA
claims. The Court concludes that Defendant’s argument has merit.
Plaintiff filed the Original Complaint on January 27, 2016 alleging FMLA
interference and retaliation. There are no allegations whatsoever in the Original
Complaint that pertain to Plaintiff’s 2013 dermatological procedures or any issues
with his skin. The underlying “medical conditions” on which Plaintiff relies in the
Original Complaint are his alleged January 13, 2014 workplace injury and his
“acute medical condition.” Original Complaint [Doc. # 1], ¶¶ 11, 15. The only
medical information that Plaintiff alleges he provided Defendant regarding his
allegedly serious health conditions were the notes from Dr. Lee and Dr. Moore, Id.
at ¶ 15, neither of which address Plaintiff’s December 2013 dermatological
procedures. The Original Complaint does not provide Defendant with any notice
that Plaintiff would be pursuing any cause of action based on Plaintiff’s December
2013 dermatological procedures.
The same is true of the Amended Complaint, which was filed over seven
months later on August 31, 2016. In the Amended Complaint, Plaintiff did not add
to or amend the factual basis for his claims. Instead of amending the factual basis
for his claims, Plaintiff added new disability-related causes of action under the
ADA and the Texas Labor Code. There are no allegations whatsoever in the
Amended Complaint that pertain to Plaintiff’s 2013 dermatological procedures or
any issues with his skin. With respect to each of the new claims in the Amended
Complaint, Plaintiff specifically alleged that “[i]n January 2014, Plaintiff was
diagnosed with medical conditions clearly constituting disabilities under the ADA
and the Texas Labor Code and Defendant was notified of this.”5
Complaint [Doc. # 16], ¶¶ 29, 36, 45.
As with the Original Complaint, the
Amended Complaint does not state, or even suggest, that Defendant would be
pursuing any cause of action based on Plaintiff’s December 2013 dermatological
In this case, Plaintiff raised his claim that Defendant violated the ADA in
connection with Plaintiff’s December 2013 dermatological procedures for the first
time in response to Defendant’s Motion. The Fifth Circuit has “made clear that
‘[a] claim which is not raised in the complaint but, rather, is raised only in response
to a motion for summary judgment is not properly before the court.” Fennell v.
Insofar as Plaintiff would argue that one of the “medical conditions” being
referred to is his skin condition, or that there is a genuine dispute as to that fact,
that argument is without merit. The summary judgment evidence does not contain
any medical records from Dr. Friedman that are dated later than December 30,
2013. There is also no evidence that Plaintiff saw Dr. Friedman between his
December 30, 2013 procedure and January 28, 2014, when Defendant officially
notified him of his termination. The only evidence of diagnosis in the record that
occurred in January 2014 are the notes from Dr. Lee and Dr. Moore, which are
referred to in both the Original and Amended Complaints. There is no evidence
that either doctor was even aware of the December 2013 dermatological
procedures. Moreover, there is no evidence that Plaintiff’s “acute medical
condition,” was something other than hypertension and/or anxiety, the alleged
conditions he actually sought treatment for from Dr. Moore.
Marion Indep. Sch. Dist., 804 F.3d 398, 415–16 (5th Cir. 2015) (quoting Cutrera v.
Bd. of Supervisors of La. State Univ., 429 F.3d 108, 113 (5th Cir. 2005); see also
Hoffman v. L & M Arts, 838 F.3d 568, 576 (5th Cir. 2016) (“a district court
considering a defendant's motion for summary judgment does not err by
disregarding a theory of liability asserted in the plaintiff's response that was not
pleaded as required by the applicable pleading standard.”). This is consistent with
the Supreme Court’s guidance that a properly pleaded complaint must give “fair
notice of what the claim is and the grounds upon which it rests.” Ashcroft v. Iqbal,
556 U.S. 662, 698–99 (2009) (emphasis added).
The Fifth Circuit’s admonition in Fennell plainly applies in this case, where
claims for various violations of the ADA were pled, but the factual basis for those
claims that Plaintiff now relies on was not. In Fennell, the plaintiffs asserted
various discrimination claims against a school district and two of its employees
based on a series of allegedly race-based incidents, one of which occurred on a
softball field. The operative complaint in that case alleged equal protection claims
under 42 U.S.C. § 1983 against the two employee defendants. After having their
entire case dismissed on summary judgment, the plaintiffs appealed to the Fifth
Circuit, and argued that as to one of the employee defendants, summary judgment
was inappropriate based on what occurred during the softball field incident. The
Fifth Circuit, however, held that the plaintiffs had “waived any claim” against the
employee defendant premised on the softball field incident because such claim was
asserted for the first time in response to a motion for summary judgment. Fennell,
804 F.3d at 415.
In explaining why the claim was waived, the Fifth Circuit stated that “[t]he
Second Amended Complaint clearly alleges that the relevant incident underlying
this claim was [employee defendant]’s failure to override [other employee
defendant]’s punishment arising from [a different] incident involving [one of the
plaintiffs], not the softball field altercation involving [that same plaintiff].” Id.
The Fifth Circuit went on to say that “[a]lthough the Second Amended Complaint
alleges facts relating to [the other employee defendant]’s handling of the softball
field altercation, it includes no allegations against [employee defendant] relating to
his investigation and report on the [softball field] altercation.” Id. Thus, although
the plaintiffs in Fennell had pled an equal protection claim against the employee
defendants, they were not permitted to argue a new factual predicate for that claim
for the first time at summary judgment when that new factual predicate was not
adequately alleged in the operative complaint. See also Derrick Petroleum Servs.
v. PLS, Inc., No. CV H-14-1520, 2017 WL 3456920, at *12 n.1 (S.D. Tex. Aug.
11, 2017) (declining to consider additional alleged misrepresentations in
connection with underlying fraud claim when those misrepresentations were raised
for the first time in response to summary judgment and not alleged in the amended
complaint); GE Betz Inc. v. Moffitt-Johnson, No. CV H-13-0459, 2014 WL
12596523, at *20 n.3 (S.D. Tex. June 6, 2014) (declining to consider second theory
of liability on existing tortious interference claim raised for the first time on
summary judgment when the underlying counterclaim “plainly articulate[d] a sole
basis” for the tortious interference claim).
The facts here present an even more compelling case for waiver than those
the Fifth Circuit found sufficient in Fennell. Unlike in Fennell were there were at
least some allegations in the operative complaint relating to the “softball field
incident,” there are no allegations at all in the Amended Complaint that relate, even
tangentially, to Plaintiff’s December 2013 dermatological procedures.
Plaintiff’s arguments that the Court should consider his dermatologicalbased ADA claims despite his failure to allege them in the Amended Complaint (or
the Original Complaint) are unavailing. Plaintiff first argues that “the Supreme
Court has already settled that when a party lacks sufficient information, as
Defendant claims in its summary judgment motion, the appropriate recourse is a
12(e) Motion for a More Definitive Statement.” Plaintiff’s Response [Doc. # 65],
at ECF 32. This argument misses the mark. By its plain language, Rule 12(e) of
the Federal Rules of Civil Procedure applies to “a pleading to which a responsive
pleading is allowed but which is so vague or ambiguous that the party cannot
reasonably prepare a response.” FED. R. CIV. P. 12(e). The issue in this case is not
that the Amended Complaint was vague or ambiguous such that Defendant could
not reasonably prepare a response. To the contrary, the Amended Complaint is
quite clear that Plaintiff’s ADA claims are based solely on his alleged worksite
injury on January 13, 2014 and the “acute medical condition” he developed as of
January 22, 2014. The issue here is that the Amended Complaint does not address,
in any respect, Plaintiff’s December 2013 dermatological procedures. Rule 12(e)
is “a mechanism to enforce the minimum requirements of notice pleading,” Brown
v. Whitcraft, No. CIV.A.3:08CV0186-D, 2008 WL 2066929, at *2 (N.D. Tex. May
15, 2008), not a means by which a defendant is expected to tease out entirely new
and unplead claims from a plaintiff. Consequently, the fact that Defendant did not
make a Rule 12(e) motion in this case does not excuse Plaintiff’s failure to plead
any dermatological-based claims in the Amended Complaint.
Plaintiff also asserts that “Defendant cannot claim it was not on notice about
the grounds for Plaintiff’s ADA claims when Plaintiff very clearly stated those
grounds in his EEOC Charge of Discrimination dated July 24, 2014,” a document
that Defendant produced in discovery in this case.
[Doc. # 65], at ECF 33. This argument is not persuasive. First, it is the complaint,
not an EEOC charge, which actually establishes the claims that are at issue in a
lawsuit. While a complaint may be based on, and perhaps identical to, an EEOC
charge, a defendant is obligated to respond to what is in the complaint actually
filed in court, not an EEOC charge filed before an administrative agency that
predates the Original Complaint by a year and a half.
Furthermore, an EEOC charge establishes the outer limits of how broad a
discrimination lawsuit filed in federal court can be. See Franklin v. City of Slidell,
936 F. Supp. 2d 691, 710 (E.D. La. 2013) (“Consequently, the Court finds that the
scope of its inquiry in an ADA action, like in a Title VII action, should be limited
to the scope of the EEOC investigation which can reasonably be expected to grow
out of the charge of discrimination.”) (citing Young v. City of Houston, 906 F.2d
177, 179 n.1 (5th Cir. 1990); Sanchez v. Standard Brands, Inc., 431 F.2d 455, 465
(5th Cir. 1970) (internal quotation marks omitted).
There is no requirement,
however, that a complaint in a discrimination lawsuit filed in federal court be as
broad as the underlying EEOC charge. Plaintiff had readily available means, such
as incorporating the contents of his EEOC charge into the Amended Complaint by
reference or attaching his EEOC charge to the Amended Complaint, to ensure that
his claims in this case covered the entire breadth of his EEOC charge. Plaintiff did
not take either of those actions in this case. Instead, Plaintiff chose not once, but
twice, to specifically allege harms based on facts and medical conditions that have
no connection to his December 2013 dermatological procedures. Therefore, the
fact that Plaintiff raised his dermatological procedures in his EEOC charge does
not exempt him from his obligation to provide Defendant fair notice of the grounds
for his claim in this lawsuit by raising that issue in the Amended Complaint.6
Since filing the Amended Complaint, Plaintiff has not sought leave to amend the
Amended Complaint, even after Defendant in its summary judgment motion raised
the issue of Plaintiff’s failure to plead any dermatological-based ADA claims.
The Court declines, sua sponte, to view Plaintiff’s new arguments as a motion to
amend. “Under certain compelling circumstances, [the Fifth Circuit has] required
district courts to construe a new claim raised in opposition to summary judgment
as a motion to amend.” Harry v. Dallas Hous. Auth., 662 F. App’x 263, 270 (5th
Cir. 2016). The “compelling circumstances” referred to by the Fifth Circuit in
Harry include a plaintiff appearing pro se and serious errors by plaintiff’s counsel.
Id. There are no such compelling circumstances in this case.
Even if the Court were to construe Plaintiff to have sought leave to amend, the
Court would deny that request. “The district court is entrusted with the discretion
to grant or deny a motion to amend and may consider a variety of factors including
‘undue delay, bad faith or dilatory motive on the part of the movant, repeated
failures to cure deficiencies by amendments previously allowed, undue prejudice
to the opposing party . . ., and futility of the amendment.” Marucci Sports, L.L.C.
v. Nat’l Collegiate Athletic Ass’n, 751 F.3d 368, 378 (5th Cir. 2014) (quoting
Jones v. Robinson Prop. Grp., LP, 427 F.3d 987, 994 (5th Cir. 2005)). At this
stage of the litigation, an amendment to add Plaintiff’s dermatological based claim
would result in undue delay. Plaintiff has not asserted a justification for his failure
to meaningfully raise these ADA claims earlier. Moreover, discovery in this case
was completed in June, 2017, Minute Order [Doc. # 46], at ECF 1.
Further, allowing Plaintiff again to amend his claims would unfairly prejudice
Defendant unless discovery was reopened. This is unacceptable given that this
case has been pending for nearly two years and is on the eve of trial. Although
there is some limited summary judgment evidence relating to Plaintiff’s
dermatological-issues, Defendant did not have a fair opportunity to conduct
discovery on those issues. See also Harry, 662 F. App’x at 270 (finding district
court did not abuse its discretion in determining that claim that was asserted in
original complaint, dropped in the amended complaint, and re-asserted in response
to summary judgment motion was not properly before the court when discovery
had ended and “there was no apparent excuse for re-raising the abandoned claim
other than as a maneuver to avoid summary judgment.”)
In sum, Plaintiff waived any dermatological-based ADA claims by failing to
plead them in the Amended Complaint or during discovery and only raising them
in response to Defendant’s Motion. Defendant’s Motion is granted with respect to
all of Plaintiff’s dermatological-based ADA claims. 7
Had Plaintiff timely asserted his dermatological-based ADA claims, they would
have failed. Plaintiff has not raised a genuine issue of fact that he is disabled or
regarded as disabled within the meaning of the ADA. See E.E.O.C. v. Chevron
Phillips Chem. Co., LP, 570 F.3d 606, 614 (5th Cir. 2009) (Under the ADA a
“disability” is: (A) a physical or mental impairment that substantially limits one or
more of the major life activities of such individual; (B) a record of such an
impairment; or (C) being regarded as having such an impairment.”). Plaintiff’s
dermatological condition or procedures were not disabling as a matter of law and
did not substantially limit a major life activity. “In determining whether an
individual is substantially limited in a major life activity, the EEOC advises 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.” Chevron Phillips Chem. Co., LP, 570 F.3d at 614–615.
Plaintiff’s proffered limitation is that following his dermatological procedures he
was unable to work outdoors. Response [Doc. # 65], at ECF 18-19. There is no
evidence that Plaintiff’s inability to work outdoors ever amounted to anything
more than a temporary anomaly of very limited duration. Plaintiff cites no
evidence that he was unable to work outside for more than two weeks after each of
his procedures, or that he experienced any type of atypical recovery or severe
reaction to the procedures. Nor is there any evidence that any outpatient
procedures he underwent was expected to have, or have had, any long-term or
permanent effects on his ability to work outside. There is also no evidence that
Plaintiff had a recurrence of Actinic Keratosis or that such a recurrence is likely.
Based on the summary judgment evidence, Plaintiff does not raise a genuine
dispute as to whether he was substantially limited in a major life activity within
the meaning of the ADA as a result of his dermatological issues.
Plaintiff’s assertion that Defendant regarded him as disabled also fails. Defendant
excused Plaintiff from participating in the ride along based on his representation
that he needed to stay out of the sun for a few days and excused him from
attending the annual meeting in Las Vegas based on his statement that he had a
Plaintiff Has Abandoned His Remaining ADA Claims
Plaintiff’s Response to Defendant’s Motion rests entirely on the argument
that his dermatological conditions constituted a disability under the ADA. As
stated above, Plaintiff’s dermatological-based ADA claims are not properly before
the Court, as Plaintiff waived those arguments by not pleading them in the
Amended Complaint. Plaintiff’s only potential remaining ADA claims are those
based on his alleged January 2014 jobsite injury or unspecified “acute medical
condition.” Plaintiff, however, abandoned these claims by not responding to the
arguments or evidence that Defendant presented in opposition to these claims in its
motion for summary judgment. Therefore, Defendant’s Motion is granted with
respect to all of Plaintiff’s remaining ADA claims.8
“procedure” the preceding day. There is no evidence that Defendant has
otherwise, in any way, limited Plaintiff’s work responsibilities or hindered his
ability to return to work after his dermatological procedures. Plaintiff himself
testified in his deposition that he was able to work from home without issue after
his dermatological procedures and Defendant was not even aware Plaintiff had
either of his procedures.
Had Plaintiff not elected to abandon these ADA claims, the Court nevertheless
would have granted Defendant’s Motion with respect to those claims on the merits
for the same reasons that Plaintiff’s FMLA claims fail. There is no genuine
dispute that Defendant learned of Plaintiff’s alleged worksite injury and “acute
medical condition” until after Defendant had made the decision to terminate his
employment. Consequently, these medical conditions could not have served as the
basis for Defendant’s decision to take any adverse employment action against
Plaintiff, including terminating his employment.
Defendant’s Motion to Strike is Moot
Defendant, in its Motion to Strike, asks the Court to disregard evidence that
Plaintiff has presented in opposition to Defendant’s Motion on the grounds that the
evidence fails to satisfy various procedural and evidentiary standards. Motion to
Strike [Doc. # 70]. The evidence Defendant challenges has no bearing on the
Court’s conclusion that that Defendant’s Motion should be granted in its entirety.
The Court would reach the same conclusion irrespective of whether the challenged
evidence is admissible. Therefore, the Motion to Strike is denied as moot.
For the foregoing reasons, it is hereby
ORDERED that Defendant’s Motion for Summary Judgment [Doc. # 56] is
GRANTED. It is further
ORDERED that Defendant’s Motion to Strike [Doc. # 70] is DENIED.
SIGNED at Houston, Texas, this ___ day of October, 2017.
NAN Y F. ATLAS
STATES DISTRICT JUDGE
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