Zamora v. GC Services, LP
Filing
154
REPORT AND RECOMMENDATIONS re 145 Motion for Summary Judgment, filed by GC Services, LP. Signed by Judge Robert F. Castaneda. (em)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
ALEX ZAMORA,
§
§
§
§ EP-15-CV-00048-DCG-RFC
§
§
§
§
Plaintiff,
v.
GC SERVICES, LP,
Defendant.
REPORT AND RECOMMENDATION
Before the Court is Defendant GC Services, LP’s (“GC”) Motion for Summary
Judgment (“Motion”) filed on September 8, 2017. (ECF. 145). On January 19, 2018, Plaintiff
Alex Zamora (“Mr. Zamora”), pro se, filed a Response to GC’s Motion (ECF. 149), and on
February 16, 2018, GC filed a Reply. (ECF No. 151). Finally, on March, 23, 2018, pursuant to
28 U.S.C. § 636(b)(1)(B) and Rule 1(d) of Appendix C to the Local Rules, GC’s Motion was
referred to this Court. (ECF. 152). For the reasons that follow, this Court RECOMMENDS that
GC’s Motion be GRANTED.
I.
BACKGROUND
GC employed Mr. Zamora as a unit manager at its Reliant Energy office in El Paso,
Texas. (D. Ex. 1G). Mr. Zamora’s position required frequent interaction with employees and
customers. Specifically, Mr. Zamora must manage and resolve high pressure situations involving
customers and employees, participate in disciplinary actions, supervise team members, and train
other employees. (D. Ex. 1B).
On July 16, 2012, Mr. Zamora went to University Medical Center (“UMC”) and was
thereafter transferred to El Paso Psychiatric Center on July 25, 2012. (P. Exs. 1, 1A). The exact
details surrounding Mr. Zamora’s hospitalization and subsequent commitment to El Paso
1
Psychiatric Center are in dispute. (ECF. 145: 3, 149: 1, D. Ex. 7: 1–2, P. Ex. 1A). Following Mr.
Zamora’s trip to UMC, Mr. Zamora’s father filed a request for personal leave of absence for Mr.
Zamora on July 23, 2012. (D. Ex. 1C). The request form indicated that Mr. Zamora had a serious
medical condition. (D. Ex. 1C). On July 27, 2012, Mr. Zamora’s physician at El Paso Psychiatric
Center sent GC a certification for his leave of absence. In this certification, Mr. Zamora was
experiencing:
[A]nxiety and suicidal thoughts; thoughts of wanting to hurt others. He was
experiencing auditory hallucinations, racing thoughts, sleeping 3–6 hrs/wk.
Inability to focus/concentrate.
(D. Ex. 1D).
On August 1, 2012, GC received Mr. Zamora’s Fit for Duty Release form from El Paso
Psychiatric Center signed by Nurse Soledad Flores. (D. Ex. 1F). The form only displayed a
checked box, which indicated that Mr. Zamora was able to return to work without any
restrictions on August 13, 2012. (D. Ex. 1F). Worried that this form was devoid of any
substance, Meagan Conway, GC’s general counsel, began a background check on Mr. Zamora.
(D. Ex. 7: 2–4). Conway feared that Mr. Zamora may pose a safety risk for other employees. (D.
Ex. 7: 2–4). In her research, Conway found that Mr. Zamora had been arrested and convicted of
aggravated assault with a deadly weapon in July of 2011. (D. Exs. 1E, 2: 25–29, 3). Although the
exact details surrounding Mr. Zamora’s conviction are in dispute, the parties do not dispute the
fact that Mr. Zamora was arrested and convicted of aggravated assault with a deadly weapon.
(ECF. 149: 15, ECF. 145: 4. D. Ex. 2: 25–28).
Following this discovery, Conway attempted to call Mr. Zamora’s physician at El Paso
Psychiatric Center, but was unable to reach the physician. (D. Ex. 7: 3). The call was answered
-2-
by another El Paso Psychiatric Center employee, and what occurred during this conversation is
in dispute. (D. Ex. 7: 3, P. Ex. 1C).
On August 7, 2012, Conway and Kim Jackson, the former Assistant Vice President of
Employee Relations for GC, made the decision to terminate Mr. Zamora’s employment. (D. Exs.
7: 4, 8: 3). Conway and Jackson feared that Mr. Zamora may be a threat to fellow GC
employees. (D. Exs. 7: 2–4, 8: 2–4). According to GC, three days later on August 10, 2012, in a
meeting with Isabel Cigarroa and Paul Gazeley, Mr. Zamora was terminated pursuant to
instructions from Jackson. (D. Exs. 4: 48–50, 8: 3). In this meeting, for the first time, Mr.
Zamora informed GC of his bipolar disorder and paranoid schizophrenia. (D. Ex. 4: 46–98).
Cigarroa told Mr. Zamora that he was terminated because he posed a threat to other employees.
(D. Exs. 7: 4, 8: 4).
Mr. Zamora disputes GC’s version of events. First, Mr. Zamora, in his Response, points
to his State Court Petition and indicates that on August 8, 2012, he informed Zoraida Femat,
GC’s Human Resources Generalist, that he required a modified work schedule, because his
medication made him drowsy in the evening. (D. Ex. 6: 3). Further, once again pointing to his
State Court Petition, Mr. Zamora argues that he was fired on August 8, 2012, and was never told
by Cigarroa and Gazeley that he posed a threat to other employees. (ECF. 149: 15–16).
Importantly, however, the parties do not dispute the fact that Mr. Zamora suffered from bipolar
disorder and paranoid schizophrenia at the time of his termination.
Subsequent to his termination, Mr. Zamora filed a charge with the EEOC, and filed suit
in El Paso state court on November 21, 2014. (D. Exs.1H, 6). In Mr. Zamora’s First Amended
Petition, Mr. Zamora alleged disability discrimination, retaliation, and failure to provide
reasonable accommodations under the Americans with Disabilities Act (“ADA”). Plaintiff’s First
-3-
Amended Petition and Request for Disclosure, Zamora v. GC Services LP, No. 2014-DCV-3721,
ECF. 1, (210th Dist. Ct., El Paso County, Tex. Feb. 18, 2015). The case was removed to federal
court on February 19, 2015. (ECF. 1). The district court granted GC’s Motion to Dismiss on
March, 28, 2015, holding that Mr. Zamora’s suit was filed untimely. (ECF. 18). The Fifth Circuit
reversed and remanded. (ECF. 46). GC now files this Motion alleging that:
(1) Mr. Zamora cannot meet his prima facie case of discrimination under the
ADA;
(2) GC had a legitimate, nondiscriminatory reason for firing Mr. Zamora;
(3) Mr. Zamora never requested a reasonable accommodation under the ADA;
and
(4) No reasonable accommodations can be made for Mr. Zamora because he
posed a direct threat to others in the work place.
(ECF. 145).
II.
STANDARD
Summary judgment is appropriate when “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). “A genuine dispute of fact exists when evidence is sufficient for a reasonable jury
to return a verdict for the non-moving party, and a fact is material if it ‘might affect the outcome
of the suit.’” Willis v. Cleco Corp., 749 F.3d 314, 317 (5th Cir. 2014) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). In deciding whether a genuine dispute as to material fact
exists, a trial court considers all of the evidence in the record and “draw[s] all reasonable
inferences in favor of the nonmoving party,” but “refrain[s] from making credibility
determinations or weighing the evidence.” Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337,
343 (5th Cir. 2007).
Procedurally, the party moving for summary judgment “bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those portions of [the
-4-
record] which it believes demonstrate the absence of a genuine issue of material fact.”1 EEOC v.
LHC Group., 773 F.3d 688, 694 (5th Cir. 2014) (quoting Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986)). When the nonmoving party will bear the burden of proof at trial, the moving party
may satisfy this responsibility by “point[ing] out the absence of evidence supporting the
nonmoving party’s case.” Latimer v. Smithkline & French Lab., 919 F.2d 301, 303 (5th Cir.
1990); see also Boudreaux v. Swift Transp. Co., 402 F.3d 536, 544–45 (5th Cir. 2005).
If the moving party succeeds, “the onus shifts to the nonmoving party to go beyond the
pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and
admissions on file, designate specific facts showing that there is a genuine issue for trial.”
EEOC v. LHC Group, 773 F.3d at 694 (internal quotation marks omitted) (citing Celotex Corp.,
477 U.S. at 324). However, the nonmoving party “cannot defeat summary judgment with
conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence.” Davis v. Fort
Bend Cty., 765 F.3d 480, 484 (5th Cir. 2014) (citing Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir.1994) (en banc) (per curiam)). In evaluating whether the parties have met their
respective burden, “the Court considers only competent summary judgment evidence.” Reeves v.
Wells Fargo Bank, NA, No. EP-14-CV-00187-DCG, 2015 WL 11598711, at *1 (W.D. Tex. Sept.
4, 2015) (citing, inter alia, Goodwin v. Johnson, 132 F.3d 162, 186 (5th Cir. 1997)); see also
Fed. R. Civ. P. 56(c).
Finally, the court is to construe liberally the briefs of pro se litigants and apply less
stringent standards to them than to parties represented by counsel. Andrade v. Gonzales, 459
F.3d 538, 543 (5th Cir. 2006); Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995). Nevertheless,
1
The Court, here, uses the terms “dispute” and “issue” interchangeably. See Fed. R. Civ. P. 56
advisory committee’s notes to 2010 amendment (stating that in the amended rule, “genuine
‘issue’ becomes genuine ‘dispute.’ Dispute better reflects the focus of a summary-judgment
determination.”).
-5-
a pro se party must still brief his issues. Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995).
Further, “even pro se litigants must comply with the Federal Rules of Civil Procedure and
present proper summary judgment evidence.” See Rolen v. City of Brownfield, Tex., 182 F.
App’x 362, 365 (5th Cir. 2006) (citing Gordon v. Watson, 622 F.2d 120, 123 (5th Cir. 1980));
see also EEOC v. Simbaki, Ltd., 767 F.3d 475, 484 (5th Cir. 2014) (noting that pro se litigants
must present competent summary judgment evidence, as set forth in the Federal Rules of Civil
Procedure). It is well settled that allegations in a plaintiff’s complaint are not summary judgment
evidence. Wallace v. Tex. Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996). This is especially true
here, where GC expressly warned Mr. Zamora that he must submit evidence disputing the
defendant’s version of the facts if he wished to survive summary judgment.2
III.
A.
DISCUSSION
Discrimination Termination under the Americans with Disabilities Act
The ADA prohibits discrimination against a “qualified individual with a disability on the
basis of that disability.” 42 U.S.C. § 12112(a). In a discriminatory-termination action under the
ADA, the employee may either present direct evidence that he was discriminated against because
of his disability or alternatively proceed under the burden-shifting analysis first articulated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Under the burden-shifting
analysis, a plaintiff must establish a prima facie case of discrimination. EEOC v. Chevron
Philips Chem. Co., 570 F. 3d 605, 615 (5th Cir. 2009). To establish a prima facie discrimination
claim, a plaintiff must show: (1) that he has a disability; (2) that he was qualified for the job; and
2
GC, per standing order, sent Mr. Zamora a Pro Se Notice (ECF No. 146). The Notice provided
Mr. Zamora with clear details and instructions regarding what evidence he needed to produce for
summary judgment; however, in many instances, Mr. Zamora has failed to follow those
instructions. Nevertheless, in an abundance of caution, the Court will construe his brief liberally.
-6-
(3) that he was subject to an adverse employment decision on account of his disability. EEOC v.
LHC Group, Inc., 773 F.3d 688, 697 (5th Cir. 2014).
If the plaintiff successfully satisfies his prima facie case of discrimination, then the
defendant must articulate a legitimate, nondiscriminatory reason for termination. Id. at 694. If the
defendant meets this burden of production, the burden shifts back to the plaintiff to show that
defendant’s proffered reason is pretextual. Id. at 702. In the Rule 56 context, a prima facie case
of discrimination plus a showing that the proffered reason is pretextual is typically enough to
survive summary judgment. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 146–
48, 150 (2000) (reaching a similar conclusion in the Rule 50 context, which mirrors the standard
for summary judgment).
In the present case, Mr. Zamora has failed to submit direct evidence of disability
discrimination. Therefore, Mr. Zamora’s disability discrimination claim will be evaluated under
the burden-shifting analysis.
1. Disability
In its Motion, GC first argues that Mr. Zamora failed to satisfy the first element of his
prima facie case. Specifically, Mr. Zamora never told anyone at GC about his disabilities, Mr.
Zamora does not even believe himself to be disabled, and Mr. Zamora’s impairments do not
meet the standards for being disabled under the ADA. ( ECF. 145:9–10). In response, Mr.
Zamora argues that he satisfies the first element because of his bipolar disorder and paranoid
schizophrenia. (ECF. 149:2). In an ADA case, the relevant time for assessing the existence of a
disability is the time of the adverse employment action. EEOC v. Chevron Phillips Chemical
Co., LP, 570 F.3d 606, 618 (5th Cir. 2009).
-7-
Under the ADA, a disability is “(A) a physical or mental impairment that substantially
limits one or more of the major activities of such individual; (B) a record of such impairment; or
(C) being regarded as having such an impairment.” 42 U.S.C. § 12102(1).
As an initial matter, whether Mr. Zamora qualifies as disabled under the ADA will be
evaluated under subsection A of 42 U.S.C. § 12102(1). Mr. Zamora has failed to provide any
evidence that suggests a record of impairments under subsection B, and he has failed to provide
any evidence showing that GC regarded him as disabled under subsection C.
Under subsection A, a plaintiff must show that he has a physical or mental impairment.
42 U.S.C. § 12102(1)(A). A mental impairment means “[a]ny mental or psychological disorder,
such as an intellectual disability...organic brain syndrome, emotional or mental illness, and
specific learning disabilities.” 29 C.F.R. § 1630.2(h)(2). However, simply having an impairment
is insufficient to make one disabled; a plaintiff must show that the impartment substantially
limits a major life activity. EEOC v. Chevron Phillips Chemical Co., LP, 570 F.3d 606, 614 (5th
Cir. 2009).
Major life activities include, but are not limited to: caring for oneself, performing manual
tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing,
learning, reading, concentrating, thinking, communicating, and working. 42 U.S.C. §
12102(2)(A); 29 C.F.R. § 1630.2(i)(1)(i). Moreover, substantially limited means an impairment
that “substantially limits the ability of an individual to perform a major life activity as compared
to most people in the general population.” 29 C.F.R. § 1630.2(j)(1)(ii).
The ADA was amended by the Americans with Disabilities Act Amendments Act of
2008 (“ADAAA”), in order to broaden its definition of what qualified as a disability. ADA
Amendments Act of 2008, Pub. L. No. 110–325, 122 Stat. 3553. This amendment was
-8-
undertaken in response to court decisions that Congress felt “had created an inappropriately high
level of limitation necessary to obtain coverage under the ADA.” Id. at 3554. Thus, the ADAAA
directs that “[t]he definition of disability in this Act shall be construed in favor of broad coverage
of individuals under this Act, to the maximum extent permitted by the terms of this Act.” Id.
Under the ADAAA, the definition of disability now includes impairments that are
episodic or in remission if they would substantially limit a major life activity when active. Id.
Further, under the applicable federal regulation enacted after the ADAA “major depressive
disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and
schizophrenia substantially limit brain function.” 29 C.F.R. § 1630.2(j)(3)(iii). Finally,
mitigating measures such as medication and assistive technology are irrelevant when assessing
whether impairments substantially limit a person’s major life activity. ADA Amendments Act of
2008, § 4, § 3(4)(E)(1), 122 Stat. 3553, 3556.
Mr. Zamora has raised a genuine issue of material fact as to whether he is disabled under
the ADA. In Mr. Zamora’s Psychiatric Evaluation from El Paso Psychiatric Center, Mr. Zamora
was suicidal and Mr. Zamora alleged that he faced sexual harassment from coworkers and from
the nurses and security guards at UMC. (P. Ex. 1A). Finally, the report indicated that Mr.
Zamora wanted to punch a fellow employee. (P. Ex. 1A). Further, in Mr. Zamora’s certification
from El Paso Psychiatric Center, the physician noted that Mr. Zamora was experiencing anxiety,
suicidal thoughts, and thoughts of wanting to hurt others. (D. Ex. 1D). Mr. Zamora was also
experiencing auditory hallucinations, racing thoughts, sleeping only three to six hours per week,
and had difficulties with concentration. (D. Ex. 1D). Finally, Mr. Zamora was diagnosed with
being bipolar and a paranoid schizophrenic. (D. Ex. 2:44).
-9-
The impairments exhibited by Mr. Zamora satisfy the requirements listed under the ADA
and the ADAAA. First, as mentioned earlier, bipolar disorder and paranoid schizophrenia
substantially limit brain functions. 29 C.F.R. § 1630.2(j)(3)(iii). Second, according to the
physician’s certification from El Paso Psychiatric Center, Mr. Zamora’s impairments affect
numerous major life activities such as seeing, hearing, sleeping, thinking, and concentrating.
Thus, viewing the evidence in the light most favorable to Mr. Zamora, a reasonable jury can find
Mr. Zamora disabled.
2. Qualification
GC argues that Mr. Zamora fails to meet the second element of his prima facie case
because Mr. Zamora was not qualified for the job he held. Specifically, Mr. Zamora cannot meet
the essential functions of a unit manager because he presented a threat to the safety of other
employees in the work place. (ECF. 145: 10–12, 16–19, ECF. 151: 16, D. Ex. 1B).
To show he was qualified for his position as a unit manager, Mr. Zamora must show that
either: (1) he could perform the essential functions of the job in spite of his disabilities; or (2)
that a reasonable accommodation of his disabilities would have enabled him to perform the
essential functions of the job. EEOC v. LHC Group, Inc., 773 F.3d 688, 691 (5th Cir. 2014)
(citing Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1093 (5th Cir.1996) (per curiam)); 42
U.S.C. § 12111(8).
A function is essential if it bears more than a marginal relationship to the employee's job.
EEOC v. LHC Group, Inc., 773 F.3d at 691. In determining the essential functions of a position,
“consideration shall be given to the employer’s judgment as to what functions of a job are
essential, and if an employer has prepared a written description before advertising or
interviewing applicants for the job, this description shall be considered evidence of the essential
-10-
functions of the job.” 42 U.S.C. § 12111(8); Stockton v. Christus Health Southeast Texas, 2017
WL 1287550, NO. 1:15-CV-333 * 8 (E.D. Tex. Feb. 3, 2017) (slip copy).
Further, an individual is not qualified for a job if there is a genuine substantial risk that he
or she could be injured or could injure others, and the employer cannot modify the job to
eliminate that risk. 42 U.S.C. § 12113(b); Molina v. DSI Renal, Inc., 840 F. Supp.2d 984, 996
(W.D. Tex. 2012) (citing Chandler v. City of Dallas, 2 F.3d 1385, 1393 (5th Cir.1993)). Whether
one is a direct threat is complicated and fact intensive. Molina, 840 F. Supp.2d at 999 (citing
Rizzo v. Children’s World Learning Ctr., 84 F.3d 758, 764 (5th Cir.1996)). The employer must
make an individualized assessment of the individual’s present ability to safely perform the
essential functions of the job. EEOC v. E.I. Du Pont de Nemours & Co., 480 F.3d 724, 731(5th
Cir. 2007) (quoting Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 86, (2002)).
A genuine issue of material fact exists as to whether Mr. Zamora presented a threat to the
safety of other employees. Mr. Zamora’s Fit for Duty Release form, signed by Nurse Flores,
contained a checked box, which indicated that Mr. Zamora can return to work without
restrictions. (D. Ex. 1D). Further, in the Physician Discharge Order Inquiry drafted on August 6,
2012, Nurse Flores indicated that Mr. Zamora’s mood was good, and Mr. Zamora had clear,
coherent, and goal oriented thinking. (P. Ex. 2). The Discharge Order also indicated that Mr.
Zamora was free of paranoid or delusional thoughts, and Mr. Zamora no longer had thoughts of
hurting others. (P. Ex. 2).
While it is true that Mr. Zamora displayed serious medical concerns during his time at El
Paso Psychiatric Center, and Mr. Zamora was convicted of aggravated assault with a deadly
weapon, a reasonable jury can find that Mr. Zamora was not a threat.
-11-
3. Adverse Employment Decision
Finally, GC argues that it did not terminate Mr. Zamora on account of his disabilities.
(ECF. 145: 12). Specifically, GC was not aware of Mr. Zamora’s disabilities and only terminated
him because he posed a genuine threat to other employees. (D. Ex. 2: 39–40, D. Ex. 4:97, D. Ex.
7: 4, D. Ex. 8: 3). In order for Mr. Zamora to survive summary judgment, he must show that he
was subjected to an adverse employment decision on account of his disabilities. EEOC v. LHC
Group, 773 F.3d 688, 700 (5th Cir. 2014).
As an initial matter, Mr. Zamora failed to produce competent summary judgment
evidence regarding when he was terminated and when he first told GC of his disabilities. Mr.
Zamora cannot point to his pleadings as summary judgment evidence. Moreover, Mr. Zamora
has failed to provide any evidence that GC terminated him because of his disabilities. Conway
and Jackson made their decision to terminate Mr. Zamora before Mr. Zamora notified GC of his
disabilities. The decision to terminate Mr. Zamora occurred on August 7, 2012, three days before
Mr. Zamora told GC of his disabilities. Conway and Jackson terminated Zamora because he
posed a genuine risk to other employees. (D. Exs. 7:2–4, 8: 2–4). Viewing the evidence in the
light most favorable to Mr. Zamora, Mr. Zamora has failed to show that he was terminated on the
basis of his disabilities. Therefore, Mr. Zamora has failed to meet his prima facie case of
discrimination.
Even assuming Mr. Zamora met his prima facie case of discrimination, summary
judgment still should be granted. GC has met its burden of production and presented a
nondiscriminatory reason for terminating Mr. Zamora: Mr. Zamora was a threat to its employees.
(D. Exs. 7: 3–4, 8: 2–3). The burden shifts back to Mr. Zamora to show that GC’s
nondiscriminatory reason was pretextual, and Mr. Zamora has not met this burden. Mr. Zamora
-12-
failed to present any evidence or present any arguments that GC’s nondiscriminatory reason for
terminating him was pretextual. Viewing the evidence in the light most favorable to Mr. Zamora,
summary judgment should be granted.
B. Reasonable Accommodations
Mr. Zamora’s discrimination claim and failure to accommodate claim will be determined
separately. See EEOC v. Accentcare Inc., 2017 Wl 2691240, No. 3:15-CV-3157-D at *5 (N.D.
Tex. June 21, 2017). In its Motion, GC argues that it did not have knowledge of Mr. Zamora’s
disabilities because Mr. Zamora requested an accommodation only after he was terminated, and
Mr. Zamora is not a qualified individual under the ADA because he posed a direct threat to other
employees. (ECF 145: 16–17). In opposition, Mr. Zamora argues that GC was on notice of his
disabilities when he requested a modified work schedule, and he did not pose a threat to GC’s
employees. (ECF. 149: 12, 17, P. Exs. 1D, 2, D. Ex. 6).
The ADA requires employers to make “reasonable accommodations to the known
physical or mental limitations of an otherwise qualified individual with a disability who is an
applicant or employee, unless such covered entity can demonstrate that the accommodation
would impose an undue hardship on the operation of the business of such covered entity.”
Claiborne v. Recovery Sch. Dist., 690 F. App’x 249, 253–54 (5th Cir. June 7, 2017) (citing 42
U.S.C. § 12112(b)(5)).
To establish a disability accommodation claim, a plaintiff must prove that: (1) the
plaintiff is a qualified individual with a disability; (2) the disability and its consequential
limitations were known by the covered employer; and (3) the employer failed to make reasonable
accommodations for such known limitations. Feist v. La. Dep’t. of Justice, Office of the Atty.
Gen., 730 F.3d 450, 452 (5th Cir. 2013).
-13-
1. Whether GC Services had knowledge of Mr. Zamora’s disabilities before he was
terminated
An employee who needs an accommodation because of a disability has the responsibility
of informing his employer. EEOC v. Chevron Philips Chem. Co., 570 F. 3d 605, 621 (5th Cir.
2009) (citing Taylor v. Principal Fin. Group, 93 F.3d 155, 165 (5th Cir.1996)). The employee
must explain that the adjustment in working conditions or duties he is seeking is for a medical
condition-related reason, but the employee does not have to mention the ADA or use the phrase
“reasonable accommodation.” Plain English will suffice. Chevron Philips Chem. Co., 570 F. 3d
at 621. When the disability, resulting limitations, and necessary reasonable accommodations are
not apparent to the employer, as it is often the case with mental disabilities, the employee must
specify the disability and its necessary reasonable accommodations. Taylor, 93 F.3d at 165.
Thus, because of the amorphous characteristics of mental disabilities, the initial burden for
requesting reasonable accommodations falls upon Mr. Zamora. Id.
Finally, once the employee presents a request for an accommodation, the employer is
required to engage in the interactive process so that together they can determine what reasonable
accommodations might be available. Chevron Philips Chem. Co., 570 F.3d at 622.
In this case, Mr. Zamora has failed to notify GC of his disabilities. In the sworn
declarations of Conway and Jackson, Conway and Jackson determined that Mr. Zamora was a
threat to other employees and made the decision to terminate him on August 7, 2012. (D. Exs.
7:2–4, 8: 2–4, 4: 49–50). Mr. Zamora informed GC of his disabilities for the first time on August
10, 2012. (D. Exs. 4: 49–50,7: 2–4). While Mr. Zamora indicates that he informed GC about his
disabilities on August 8, 2012, as mentioned earlier, Mr. Zamora cannot point to his State Court
Petition as competent summary judgment evidence. Even assuming his evidence is admissible,
-14-
Mr. Zamora still informed GC of his disabilities after the decision to terminate him was already
made.
Further, Mr. Zamora’s physician certification was insufficient to put GC on notice of his
disabilities. See Taylor, 93 F.3d at 165 (holding that a request for accommodations for a
disability not apparent to the employer without indicating the disability, its resulting limitations,
or any specific necessary accommodations is too ambiguous to constitute a formal request for
accommodations under the ADA). While the certification noted Mr. Zamora’s impairments, the
document does not diagnose Mr. Zamora with a disability, nor does it tell GC of any subsequent
limitations or necessary accommodations. (D. Ex. 1D). Mr. Zamora has failed to present any
summary judgment evidence which would allow a reasonable fact finder to conclude that GC
discriminated against him by failing to accommodate his disabilities. Finally, because Mr.
Zamora has failed to show that GC knew of his disabilities before terminating him, the question
regarding whether Mr. Zamora is a qualified individual is moot.
-15-
V.
CONCLUSION
In sum, Mr. Zamora failed to meet his prima facie case of disability discrimination, and
Mr. Zamora did not notify GC of his disabilities before his termination. Accordingly, the Court
RECOMMENDS that GC’s Motion (ECF. 145) be GRANTED.
SIGNED this 24th day of April, 2018.
ROBERT F. CASTANEDA
UNITED STATES MAGISTRATE JUDGE
NOTICE
FAILURE TO FILE WRITTEN OBJECTIONS TO THE PROPOSED FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS CONTAINED IN THE FOREGOING
REPORT, WITHIN FOURTEEN DAYS OF SERVICE OF SAME, MAY BAR DE NOVO
DETERMINATION BY THE DISTRICT JUDGE OF AN ISSUE COVERED HEREIN
AND SHALL BAR APPELLATE REVIEW, EXCEPT UPON GROUNDS OF PLAIN
ERROR, OF ANY UNOBJECTED-TO PROPOSED FACTUAL FINDINGS AND LEGAL
CONCLUSIONS AS MAY BE ACCEPTED OR ADOPTED BY THE DISTRICT COURT.
-16-
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?