Reyes v. Texas Department of Criminal Justice et al

Filing 44

MEMORANDUM OPINION AND ORDER Granting in Part, Denying in Part Collier's 30 Motion for Summary Judgment. Signed by Judge Sam Sparks. (klw)

FU.
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

2011

OCT 31

PM 3:37

-.

DANIELREYES,

Plaintiff,
CAUSE NO.:
A-16-CA-00954-SS

-vs-

TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, BRYAN
COLLIER, IN HIS OFFICIAL
CAPACITY AS EXECUTIVE
DIRECTOR;
Defendants.

ORDER
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause,
and specifically Defendants Texas Department of Criminal Justice (TDCJ) and Bryan Collier's

Motion for Summary Judgment [#30], Plaintiff Daniel Reyes' Response [#34] in opposition,

Defendants' Reply [#401 in support, and Plaintiff's Sur-Reply [#43] in opposition. Having
considered the case file and the applicable law, the Court enters the following opinion and order.

Background
This is a disability discrimination lawsuit filed by Plaintiff Daniel Reyes against his
former employer the TDCJ and its executive director, Bryan Collier. On March 21, 2014, the

TDCJ notified Reyes he had been selected for employment as a Correctional Officer at the
McConnell Unit in Beeville, Texas. Defs.' App. [#3 3] at 1.

After completing the physical

agility test and pre-service training academy, Reyes completed a response form to his conditional
offer of employment on April 24, 2014. Id at 2. In this form, Reyes confirmed his desire to
work as a Correctional Officer with the TDCJ and his ability to perform the essential functions of
the position without accommodations. Id.

Reyes began on-the-job training on June 2, 2014.

Defs.' App. [#37] at 71. During

training, on June 6, 2014, Reyes submitted a workplace accommodation request. Pl.'s App.
[#3 3] at 8. Reyes described the essential function for which he sought an accommodation as "the

duty of some paperwork." Id. He listed his limitations as "mentally reading & spelling wrong
due to dyslexia & remembering things." Id. As a workplace accommodation, Reyes requested

"[i]f I am able to have a mentor a while longer and if I can have a position that will be less
difficult but still" remain a Correctional Officer. Id. Reyes submitted a medical information

form from Xavier Martinez, Ph.D. to corroborate his permanent disabilities first diagnosed on
April 23, 2009. Id. at 9.

On July 9, 2014, Reyes completed training and began working as a Correctional Officer
in the McConnell Unit. See Defs.' App. [#37] at 74. Shortly thereafter, on July 21, 2014, the

TDCJ recommended Reyes for "administrative separation" based on his request for a workplace

accommodation.

Pl.'s App. [#33] at

10.

The TDCJ's Executive Director approved the

administrative separation on July 25, 2014, effectively terminating Reyes' employment.

See

id.

at 11.

Reyes contends he was wrongfully terminated in response to his request for a workplace

accommodation. In his amended complaint, Reyes alleges TDCJ violated the Texas Labor Code,
the Americans with Disabilities Act (ADA), and the Rehabilitation Act of 1973.

See

Am.

Compl. [#26]. Reyes seeks job placement in a comparable position, back-pay with prejudgment

interest, compensatory damages, and attorney's fees.' Id. at 14-15. In addition, Reyes seeks

Defendants assert they are entitled to Eleventh Amendment immunity for any monetary damages sought
under the ADA. Mot. Summ. J. [#30] at 18-19. Reyes concedes Defendants are immune from money damages
under the ADA, and therefore Reyes may not seek monetary damages under the ADA in this case. See Resp. [#34]
at 1.
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2

declaratory and injunctive relief against TDCJ's employment policies PD-14 and PD-24 that
served as Defendants' justification for his termination. Id.

Defendants have moved for summary judgment on all claims, arguing Reyes' termination
was justified and its employment policies comply with applicable laws. See Mot. Summ. J.
[#30]. Defendants cite Reyes' failure to identify his preexisting, permanent medical condition

that impacted his ability to perform essential job functions as justification for his termination. Id.

Defendants' motion is fully briefed and ripe for consideration.

Analysis
I.

Legal StandardSummary Judgment
Summary judgment shall be rendered when the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine dispute as to any material fact
and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
Celotex Corp.

v.

Catrett, 477 U.S. 317, 323-25 (1986); Washburn

(5th Cir. 2007). A dispute regarding a material fact is "genuine"

v.

Harvey, 504 F.3d 505, 508

if the evidence is such that a

reasonable jury could return a verdict in favor of the nonmoving party. Anderson

v.

Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the

court is required to view all inferences drawn from the factual record in the light most favorable

to the nonmoving party. Matsushita Elec. Indus. Co.

v.

Zenith Radio, 475 U.S. 574, 587 (1986);

Washburn, 504 F.3d at 508. Further, a court "may not make credibility determinations or weigh

the evidence" in ruling on a motion for summary judgment. Reeves

v.

Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-55.
Once the moving party has made an initial showing that there is no evidence to support

the nonmoving party's case, the party opposing the motion must come forward with competent

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summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at
586. Mere conclusory allegations are not competent summary judgment evidence, and thus are

insufficient to defeat a motion for summary judgment. Turner
476 F.3d 337, 343 (5th Cir. 2007).

v.

Baylor Richardson Med. Ctr.,

Unsubstantiated assertions, improbable inferences, and

unsupported speculation are not competent summary judgment evidence.

The party

Id.

opposing summary judgment is required to identif' specific evidence in the record and to

articulate the precise manner in which that evidence supports his claim. Adams

v.

Travelers

Indem. Co. of Conn., 465 F.3d 156, 164 (5th Cir. 2006). Rule 56 does not impose a duty on the

court to "sift through the record in search of evidence" to support the nonmovant's opposition to
the motion for summary judgment. Id.

"Only disputes over facts that might affect the outcome of the suit under the governing
laws will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248.

Disputed fact issues that are "irrelevant and unnecessary" will not be considered by a court in
ruling on a summary judgment motion. Id.

If the nonmoving party fails to make a showing

sufficient to establish the existence of an element essential to its case and on which it will bear
the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.

II.

Application
As indicated above, Reyes asserts causes of action under the Texas Labor Code, the

ADA, and the Rehabilitation Act of 1973. The parties briefing addresses the claims by category,
and therefore the Court will do the same below.
A. Disparate Treatment and Disparate Impact Claims

Reyes' complaint alleges Defendants use standards, criteria, or methods of administration

of their PD-14 and PD-24 policies that have the effect of unlawfully discriminating on the basis

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of disability, or using qualification standards, employment tests, or other selection criteria that
tend to screen out individuals with disabilities, or a class of individuals with disabilities, in
violation of the ADA, the Texas Labor Code, and the Rehabilitation Act of 1973. See Am.
Compl. at ¶J 35, 45, 55.

Defendants contend they are entitled to summary judgment because Reyes' disparate

impact claims amount to mere conclusory and subjective beliefs that PD-14 and PD-24 were
used to terminate his employment. 2 See Mot. Summ. J. [#30] at 7. According to Defendants,
Reyes does not specify any portion of the policies that are discriminatory or any evidence these

policies fall more harshly on disabled individuals. Id at 7-8. Defendants also argue PD-14 and
PD-24 were implemented to ensure standard practices to accommodate employees with

disabilities in addition to protecting the safety and security of employees and offenders. Id.
In response, Reyes asserts he has presented a prima fade case for his disparate treatment

claims. See Resp. [#34] at 7-12. Specifically, Reyes argues he is qualified for the Correctional

Officer position, and Defendants terminated him for his disability. Id.
The Court notes the parties arguments are directed at different legal theories of
discrimination: disparate impact and disparate treatment. The two forms of discrimination and
the causes of action underlying each are distinct. Raytheon Co.

v.

Hernandez, 540 U.S. 44, 52

(2003). Thus, the Court will address each theory of discrimination separately.
1.

Disparate treatment

Disparate treatment is when an employer treats an employee less favorably than others
because of a protected characteristic. Raytheon, 540 U.S. at 52. To make out a prima facie
2

At the end of their brief, Defendants note Section 504 of the Rehabilitation Act of 1973 prohibits
discrimination if it occurs solely by reason of the plaintiff's disability. See Mot. Summ. J. [#30] at 20. Defendants
then incorporate all of their same arguments addressed in this opinion in seeking summary judgment for Reyes'
claims under Section 504. Because Defendants rely on the same arguments, the Court will not address the Section
504 claims separately.
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claim of disparate treatment discrimination, a plaintiff must show (1) he has a disability; (2) he is
qualified for the position; (3) he was terminated; and (4) he was treated less favorably than nondisabled employees. See Crawford v. US. Dept. of Homeland Sec., 245 F. App'x 369, 380 (5th
Cir. 2007). Liability in a disparate-treatment case depends on whether the protected trait actually

motivated the employer's decision, which can be proven by either direct or circumstantial
evidence. Id. at 378.
The Court finds Reyes has presented evidence to support a prima facie claim of disparate

treatment discrimination. It is undisputed Reyes has a disability and he was terminated from his

job with the TDCJ. Defendants, however, contend Reyes is not qualified for the position of
Correctional Officer II because he could not work in all areas of the McConnell unit. Mot.
Summ. J [#3 0] at 11-12. Defendants rely on Reyes' request for "a position that will be less

difficult" and his deposition testimony in which he stated working in the picket area was
"strenuous." Id. Reyes has raised a factual dispute as to whether he is qualified for the position

of Correctional Officer li.3 For example, Reyes passed all pre-employment tests and worked as a
Correctional Officer ITincluding in the picket

areawithout issue before being terminated.

Defs.' App. [#3 7] at 74-83. The TDCJ acknowledged Reyes could have withdrawn his request
for a workplace accommodation, and had he done so, he would have been allowed to continue
working in his position without an accommodation. See id. at 56-57 (Marylan Thomas Dep. Tr.

at 28:15-29:12); id. at 43 (Marylan Thomas Dep. Tr. at 33:6-35:8).

Based on the above

evidence, a reasonable jury could conclude Reyes is qualified for the position of Correctional

Officer II.

A jury could also infer from this evidence that Reyes, as an employee with a

The Court finds Defendants' concession with respect to Reyes' failure-to-accommodate claim relevant to
this issue. See Mot. Summ. J. [#30] at 14 ("For purposes of this motion, TDCJ does not dispute that Reyes was a
qualified individual"); see also 42 U.S.C.A. § 12111(8) ("The term 'qualified individual' means an individual who,
with or without reasonable accommodation, can perform the essential functions of the employment position that
such individual holds or desires.").

disability who submitted a workplace accommodation, was treated less favorably than nondisabled employees who did not submit the same request and were not terminated.
Because Reyes has proffered evidence to support a prima facie claim of disparate

treatment discrimination, the burden shifts to Defendants, who "must articulate a legitimate,

nondiscriminatory reason" for the adverse employment decision. Robles

v.

Texas Tech Univ.

Health Scis. Ctr., 131 F. Supp. 3d 616, 626 (W.D. Tex. 2015). Defendants have met this burden
in arguing Reyes was terminated for failing to follow the TDCJ procedures and instructions by

not disclosing his preexisting, permanent medical disability in completing his conditional offer

of employment. See Mot. Summ. J. [#30] at 8-9, 12.
In light of Defendants' proffered nondiscriminatory reason for terminating Reyes, the

burden shifts back to Reyes "to produce evidence from which a jury could conclude that the
employer's articulated reason is pretextual." Williams

v.

J.B. Hunt Transp., Inc., 826 F.3d 806,

811 (5th Cir. 2016). Reyes has presented such evidence in Defendants' changing explanations of

the reason for his separation and termination.

See Defs.' App. [#37] at 86 (describing

justification for administrative separation as "Mr. Reyes submitted a request to be placed in a
position that does not require completion of paperwork" in July 21, 2014 Recommendation for
Administrative Separation); Mot. Summ. J. [#30] at 9 (describing justification for administrative

separation as "because he failed to follow TDCJ's procedures and instructions and was not
truthful when he signed the conditional offer of employment"); See Defs.' App. [#37] at 92

(describing justification for administrative separation as "it did not appear he would be able to
perform the duties of a correctional officer with regard to the mental requirements of the
position"). In discrimination cases, "an employer's inconsistent explanations for its employment

decisions at different times permit[

]

a

jury

to infer that the employer's proffered reasons are

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pretextual." Burrell v. Dr. Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408, 412 n.h (5th Cir.
2007); see also E.E.O.C.

v.

LHC Group, Inc., 773 F.3d 688, 702 (5th Cir. 2014) (indicating

"evidence demonstrating that the employer's explanation is false or unworthy of credence, taken
together with the plaintiff's prima facie case," supports an inference of discrimination at
summary judgment).
In sum, the Court finds Reyes has presented evidence to support his disparate treatment

discrimination claims, and material factual disputes prevent summary judgment of the same.
2. Disparate Impact

Disparate-impact claims involve facially neutral employment practices that fall more
harshly on one group than another and cannot be justified by business necessity. Raytheon Go,
540 U.S. at 52. To make out a prima facie claim of disparate-impact discrimination, a plaintiff

must identify the challenged employment policy used by defendants, demonstrate a disparate
impact on a protected group, and demonstrate a causal relationship between the identified policy
and the disparate impact. See Gonzales

v.

City of New Braunfels, Tex., 176 F.3d 834, 839, n. 26

(5th Cir. 1999). Statistical evidence is ordinarily required in disparate impact cases. Wallace

v.

Magnolia Family Servs, L.L.C., 637 F. App'x 786, 789 (5th Cir. 2015).
Defendants contend they are entitled to summary judgment because Reyes has failed to
describe a specific neutral practice or policy that falls more harshly on a protected group than on
others. Mot. Summ. J. [#30] at 8. The Court agrees Reyes has failed to present evidence of a

disparate impact.

First, it is unclear from the complaint and briefing what protected group

underlies Reyes' claim for disparate-impact discrimination.

Reyes' complaint references

"qualified employees with disabilities," but his briefing refers to employees "with a preexisting
disability." Compare Am. Compi. ¶J 35, 45, 55, with Resp. [#34] at 10. More importantly, there

8

is no evidence

of a disparate impact on a protected group. At best, Reyes submits evidence of

alleged discrimination against himself and six other correctional officers separated from the
TDCJ since 2013.

See

Resp. [#34] at 17. There is no evidence, however, of the total requests for

workplace accommodations submitted during this time, the number of requests made by

members of the protected group, or statistics on the outcomes of these requests. The evidence
here is insufficient to raise a factual issue as to comparative impact on a protected group. See
Wallace, 637 F. App'x at 789; see also Crawford, 245 F. App'x at 381 (5th Cir. 2007) (affirming

dismissal of ADA disparate-impact claims because "no valid statistical evidence or analysis

regarding the effect" of the challenged policy on disabled individuals).
For these reasons, the Court finds Defendants are entitled to summary judgment on

Reyes' disparate-impact discrimination claims.
B. Failure-to-Accommodate Claims

Reyes alleges Defendants refused to make a reasonable accommodation for his disability,

thereby violating the Texas Labor Code, the ADA, and the Rehabilitation Act of 1973. See Am.
Compl. ¶J 34, 44, 54.

To prevail in a failure-to-accommodate claim, a plaintiff must show (1) he is a qualified

individual with a disability, (2) the disability was known by his employer; and (3) the employer
failed to make reasonable accommodations. See Feist v. St.
Attorney Gen., 730 F.3d 450, 454.

of La. Dep 't ofJustice,

office of the

Reasonable accommodations may include, among other

things, job restructuring, part-time or modified work schedules, and reassignment to a vacant
position. See 42 U.S.C.A.

§

12111(9). However, an employer is not obligated to relieve an

employee of any essential job functions, modify those duties, or reassign existing or new
employees to perform those jobs.

Burch

v.

City of Nacogdoches, 174 F.3d 615, 621 (5th

Cir.1999). Whether an accommodation is reasonable is a question of fact. Antoine

v.

First

Student, Inc., 713 F.3d 824, 831 (5th Cir. 2013).

Defendants only dispute whether Reyes' request for a workplace accommodation was
reasonable. See Mot. Summ. J. [#30] at 14 ("For purposes of this motion, TDCJ does not dispute

that Reyes was a qualified individual, or that his limitations were known by TDCJ."). According
to Defendants, the request here was not reasonable because it required modifying or relieving

Reyes of essential job functions. Id. at 15. Reyes counters he did not request relief from or

modification of any essential job functions, and the TDCJ caused a breakdown in the required

interactive process. Resp. [#34] at 12-14.
The Court concludes summary judgment is not appropriate for Reyes' failure-to-

accommodate claims. Reyes requested "[I]f I am able to have a mentor a while longer and if I
can have a position that will be less difficult position." Pl.'s App. [#33] at 8. Reyes focuses on

the reasonableness of his request for a mentor, while Defendants concentrate on his request for a
"less difficult position." Given Defendants' concession that Reyes is a qualified individual and
the factual nature of the reasonableness inquiry, a jury could determine a reasonable

accommodation would have enabled Reyes to fulfill the essential functions of his job. After all,
Reyes, as the employee, "was not required to come up with the solution [to accommodate his
disability]

. . .

on [his] own." E.E.O.C.

(5th Cir. 2009); see also Taylor

v.

v.

Chevron Phillips Chem. Co., LP, 570 F.3d 606, 622

Principal Fin. Group, Inc., 93 F.3d 155, 165 (5th Cir. 1996)

("the responsibility for fashioning a reasonable accommodation is shared between the employee
and employer")

Setting aside the reasonableness of Reyes' requests, Defendants failed to engage in the
required interactive process. "Under the ADA, once the employee presents a request for an

IEI

accommodation, the employer is required to engage in the interactive process so that together
they can determine what reasonable accommodations might be available." Chevron, 570 F.3d at
622 (emphasis in original); see also LHC Group, Inc., 773 F.3d at 699. Defendants acknowledge

this obligation in their brief, but suggest they were exempt from engaging in the interactive
process because "Reyes's request was unreasonable." See Mot. Summ. J. [#30] at 15-16.
Defendants have not cited any legal basis for an exemption from engaging in the interactive
process.4

To the contrary, the law suggests Defendants should have engaged in such a process

before preemptively terminating Reyes. See Cutrera v. Bd.

of Supervisors of La.

State. Univ.,

429 F.3d 108, 113 (5th Cir. 2005) ("An employer may not stymie the interactive process of

identifying a reasonable accommodation for an employee's disability by preemptively

terminating the employee before an accommodation can be considered or recommended.").
Defendants' failure to engage in the interactive process is itself actionable. See Louise ged

v.

Akzo Nobel Inc., 178 F.3d 731, 736 (5th Cir. 1999) (stating "when an employer's unwillingness

to engage in a good faith interactive process leads to a failure to reasonably accommodate an

employee, the employer violates the ADA").
C. Retaliation Claims

Reyes claims the TDCJ retaliated against him after he requested a reasonable workplace

accommodation, in violation of the Texas Labor Code, the ADA, and the Rehabilitation Act of
1973. See Am. Compi.

¶11

34, 44, 54. Defendants do not challenge Reyes has presented a prima

facie case of retaliation. Resp. [#3 0] at 17-18.

Instead, Defendants contend they had a

legitimate, non-retaliatory reason for their decision that absolves them from liability. Id.
Defendants may rely on the cited LHC Group, Inc. in which the Fifth Circuit stated the "proposed
solutions were not so unreasonable that they absolved [the employer] of its statutory duty to at least discuss
accommodation." Mot. Summ. J. [#30] at 16 (citing LHC Group, Inc., 773 F.3d at 699). Even assuming this
decision permits an employer to skip the interactive process when a request for accommodation is "so
unreasonable," the Court is not convinced such a situation exists in this case.
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Once an employee establishes a prima fade case of retaliation, the burden shifts to the

employer to state a legitimate, non-retaliatory reason for its decision.

Feist,

730 F.3d at 454.

After the employer provides a legitimate, non-retaliatory reason, the burden shifts back to the

employee to demonstrate that the employer's reason is pretext for retaliation. Id. The employee
may meet this shifting burden by showing that the adverse action would not have occurred "but

for" the employer's retaliatory motive. Id.
The Court finds Reyes has presented evidence of but-for causation that prevents summary

judgment on his retaliation claims. As stated above, the TDCJ acknowledged Reyes could have
withdrawn his request for a workplace accommodation, and had he done so, he would have been

allowed to continue working in his position without an accommodation.

See

id. at 43, 56-57.

From this evidence, a reasonable jury could conclude Reyes would not have been separated or

terminated but for his request for a workplace accommodation. Thus, a factual dispute precludes
summary judgment of Reyes' retaliation claims.

Conclusion
Defendants are entitled to summary judgment on the disparate-impact discrimination
claims, but all other claims involve genuine disputes of material facts that render summary

judgment inappropriate. Accordingly:
IT IS ORDERED that Defendants TDCJ and Bryan Collier's Motion for
Summary Judgment [#3 0] is GRANTED in part and DENIED in part in accordance with

this opinion.

SIGNED this the 31 .ff day of October 2017.

SAM SPARKS
UNITED STATES DISTRICT JUDGE
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