Pinckney v. Federal Reserve Bank of Dallas

Filing 39

ORDER GRANTING 27 Motion for Summary Judgment; GRANTING IN PART AND DENYING IN PART 31 Motion to Strike. Signed by Judge David Ezra. (rf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
ZACHRY I. PINCKNEY,

)
)
Plaintiff,
)
)
vs.
)
)
FEDERAL RESERVE BANK OF
)
DALLAS,
)
)
Defendant.
)
_____________________________ )

NO. SA-12-CV-00324-DAE

ORDER: (1) GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT; (2) GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION TO STRIKE
Before the Court is the Motion for Summary Judgment and the
Motion to Strike brought by Defendant Federal Reserve Bank of Dallas. After
reviewing the motions and the supporting and opposing memoranda, the Court
GRANTS Defendant’s Motion for Summary Judgment (Dkt. # 27) and GRANTS
IN PART AND DENIES IN PART Defendant’s Motion to Strike (Dkt. # 31).
BACKGROUND
I.

Pinckney’s Employment with the FRB
The Federal Reserve Bank of Dallas (the “FRB”) operates a San

Antonio branch that was restructured and substantially downsized in stages. (Dkt.
1

# 28-1 (“Martin Decl.”) ¶ 6.) As part of the downsizing, the FRB ceased all cash
operations at the San Antonio branch and hired several Law Enforcement Officers
for short-term engagements to oversee the wind-down. (Id.) To provide these
short-term Law Enforcement Officers an incentive to remain with the FRB for the
duration of the downsizing, the FRB offered them retention bonuses via a
Retention Incentive Agreement. (Id. ¶ 7.)
In October 2010, the FRB hired Plaintiff Zachry I. Pinckney
(“Pinckney”) to serve as a short-term Law Enforcement Officer. (Id. ¶ 5.)
Pinckney’s job duties included: protecting bank assets; manning security posts;
ensuring those entering the FRB premises had proper identification; monitoring the
FRB’s cameras, alarms, radio, intercom, and telephone; and responding to
emergencies. (Id.) Pinckney signed a Retention Incentive Agreement pursuant to
which the FRB agreed to pay Pinckney a lump sum bonus of $5,706.00 if he
remained an employee in good standing through July 31, 2011 or an earlier date
designated at the discretion of the FRB. (Id. ¶ 7; see id. Ex. A.)
During Pinckney’s employment, the FRB had in place Equal
Employment Opportunity (“EEO”) policies prohibiting discrimination on the basis
of race, sex, age, religion, national origin, physical or mental disability, and marital
status. (Id. ¶ 8, Ex. B.) The FRB also had several procedures for reporting alleged
2

unlawful discrimination or harassment. (Id.)
In addition to its EEO policies, the FRB maintained a Standard
Operating Procedure manual (“SOP”) for employees in the Law Enforcement Unit
where Pinckney worked. (Id. ¶ 10.) The SOP contained provisions regarding
employee attendance and punctuality, which included a section on “Job
Abandonment.” (Id. Ex. C.) The SOP provided that “Job Abandonment” occurred
when an employee was “absent for two or more consecutive scheduled workdays
and fail[ed] to notify his/her supervisor of the reason for the absence.”1 (Id. Ex C
§ 201.00.) Employees were warned that “[j]ob abandonment may lead to
termination of employment.” (Id.) A copy of the SOP was provided to Pinckney
upon his employment, and he has acknowledged that he read the SOP’s section on
attendance and punctuality during his employment with the FRB. (Id. ¶ 10; Dkt.
# 28-4 (“Pinckney Dep.”) at 102:8–18.)
II.

Pinckney’s Injury and Termination
Shortly after he was hired, on October 25, 2010, Pinckney began the

Basic Law Enforcement training course with other Law Enforcement Officer
recruits. (See Dkt. # 28-9 (“Course Schedule”).) This six-week program included

1

The SOP defined an “absence” as “[a]ny time an employee is away from
his/her regular scheduled work assignment on leave or without management
approval.” (Martin Decl. Ex C.)
3

semi-automatic pistol training as well as courses in officer survival, tactical
response, and physical control techniques. (Id.) According to the FRB, the
program was physically and emotionally demanding because the participants were
required to pass a number of written and practical examinations. (Dkt. # 27 ¶ 6.)
On November 12, 2010, Pinckney alleges that he injured his knee
during baton training.2 (Pinckney Dep. at 81:5–7.) Immediately following his
injury, he participated in thirteen additional days of physically demanding training.
(Id. at 88:22–89:19; Martin Decl. Ex. 9.) Pinckney maintains that he continued
working through “intense pain” because he valued his job. (Dkt. # 30-14
(“Pinckney Decl.”) ¶ 9.) He has testified that he had a “visible limp”3 and that he
was impaired in his ability to walk, stand, lift, run, and kneel. (Id. ¶¶ 6–7.)
Additionally, he had difficulty sleeping, getting four to six hours of sleep each
night. (Id. ¶ 10.)
Despite his alleged injury, Pinckney completed his officer training

2

The FRB reports that, on February 5, 2013, the Texas Department of
Insurance, Division of Workers’ Compensation determined that Pinckney did not
sustain a compensable injury on November 12, 2010. (Dkt. # 27 n.28.)
3

To the extent Pinckney testifies that others observed him limp in his
declaration, this statement is not based on personal knowledge as required by
Federal Rule of Evidence 602 and is stricken as requested by the FRB in its Motion
to Strike. (See Dkt. # 31-1.)
4

course and began full-time work as a Law Enforcement Officer with the FRB.
More than a month after his initial injury, on Thursday, December 30, 2010,
Sergeant Johnny Sanchez—Pinckney’s “shift leader” at the FRB—noticed
Pinckney limping and inquired whether he was feeling well. (Dkt. # 28-5
(“Sanchez Dep.”) at 36:12–37:24.) Pinckney replied that he had a past knee injury
and that his knee was “hurting.” (Id.) Later that night, Pinckney called Sanchez on
Sanchez’s personal cell phone to say that he had just left the doctor’s office and
that his doctor advised him to stay home the following workday—Friday,
December 31, 2010. (Id., Ex. 1; Dkt. # 28-10.) Pinckney explained that the doctor
believed he had torn the meniscus in his right knee, but that Pinckney was going to
seek a second opinion. (Pinckney Dep. at 120:9–12.) Sanchez asked Pinckney to
send him a doctor’s note and, to that end, gave Pinckney his personal email
address. (Sanchez Dep. at 34:18–35:24.) According to Sanchez, he gave Pinckney
his personal email address because he was not in the office and did not have remote
access to his work email account, but did have immediate access to his private
email account from his smartphone. (Id.) Pinckney maintains that he sent the
requested doctor’s note to the email address allegedly provided by

5

Sanchez—[e-mail].4 (Pinckney Dep. Exs. 13, 17.) Pinckney’s
roommate, Joshua Tannen, claims to have overheard Pinckney having a telephone
conversation where Pinckney confirmed that he should send medical
documentation to the email address [e-mail].5 (Dkt. 30-15 ¶ 6.)

4

The FRB objects to Pinckney’s declaration statement: “I sent emails with
my medical documentations [sic] and restrictions to the address [e-mail]
that Mr. Sanchez provided me over the phone.” (Pinckney Decl. ¶ 12.) The FRB
contends this is “speculative, conclusory, and hearsay.” (Dkt. # 33-1.) However,
Pinckney has submitted evidence that he did indeed send emails to
[e-mail]. Pinckney further had personal knowledge of his telephone
conversation with Sanchez. His testimony that Sanchez provided a particular email
address is admissible as the admission of a party opponent. See Fed. R. Evid.
801(d)(2) (providing that a statement “offered against an opposing party and . . .
made by the party’s agent or employee on a matter within the scope of that
relationship and while it existed” is not hearsay). Sanchez was acting as an agent
of the FRB and within the scope of his employment in supplying Pinckney with an
email address to send medical documentation regarding Pinckney’s absence at
work.
5

The FRB objects to the following statement contained in Tannen’s
declaration: “I heard Mr. Pinckney confirm with [an] individual that the e-mail
address Mr. Pinckney was to send the [medical] documents to was
[e-mail]. I specifically remember this because Mr. Pinckney recited and
spelled out the email address.” (Dkt. # 31-1.) This statement is hearsay because it
is an out-of-court statement offered to prove the truth of the matter asserted. See
Fed. R. Evid. 801(c). Nonetheless, it is properly admissible, as Pinckney argues,
under the present sense impression exception to the hearsay rule as codified in
Federal Rule of Evidence 803(1). Rule 803(1) provides a hearsay exception for
“[a] statement describing or explaining an event or condition, made while or
immediately after the declarant perceived it.” Fed. R. Evid. 803(1). In this case,
Pinckney, the declarant, was participating in a telephone conversation, which is an
“event” under Rule 803(1). See United States v. Portsmouth Paving Corp., 694
F.2d 312, 323 (4th Cir. 1982) (finding that a telephone call is an “event” for the
6

According to Sanchez, the email address that he gave Pinckney over the phone was
[e-mail]. (Sanchez Dep. at 47:1–6.) There is no dispute that
Sanchez’s correct email address was [e-mail], and Sanchez never
received any emails sent by Pinckney.
On Friday, December 31, 2010, Pinckney sent an email to
[e-mail] with a doctor’s note attached. The note was from Dr. Joseph
Paquette and indicated that Pinckney could return to work on Monday, January 3,
2011. (Dkt. # 30-4.) The note also provided that Pinckney was placed on
“modified duty” for two weeks with “[l]imited walking, [n]o running, [n]o ladders”
and could “return to full duty” on January 15, 2011 or sooner. (Id.) Neither
Sanchez nor any other FRB employee received this email.
On Friday morning, Sanchez emailed his supervisor Captain Edwin
Lipinski (“Lipinski”) to inform him that Pinckney had been advised by his doctor

purposes of Rule 803(1) and that statements describing a telephone conversation
made immediately after the call fall within the present sense impression exception).
In the statement at issue here, Pinckney was describing his perception of the
substance of the telephone conversation—namely, his impression of the email
address Sanchez had just provided him. Additionally, the FRB’s objection that
Tannen could not hear Sanchez’s side of the conversation falls short. What matters
is that the declarant personally observed the event in question. See United States v.
Mitchell, 145 F.3d 572, 575 (3d Cir. 1998) (“The declarant must have personally
perceived the event described.”) (emphasis added). Moreover, Tannen laid a
sufficient foundation of personal knowledge because he lived with Pinckney and
testified to overhearing the telephone conversation.
7

to stay home due to a possible torn meniscus, but that Sanchez had not received
medical documentation from Pinckney as requested. (Dkt. # 30-7; Sanchez Dep. at
47:1–6.) Because Pinckney had not communicated with any FRB employee that
morning, Lipinski called Pinckney in the afternoon. (Dkt. # 28-6 (“Lipinski Dep.”)
at 69:18-21.) He was unable to reach Pinckney and, therefore, left a message. (Id.)
According to Pinckney, he returned Lipinski’s call within a few minutes and left a
message on Lipinski’s phone. (Pinckney Dep. at 165:23–166:2.)
On Saturday, January 1, 2011, Pinckney went to the Emergency Room
to have his knee examined. (Dkt. # 30-5.) Dr. Tri Dang examined his knee and
instructed Pinckney to “stay off the right lower extremity” and to attend a followup appointment. (Id.) Pinckney obtained a “Work Release” from Dr. Dang
indicating a return to work date of Monday, January 4, 2011. (Id.)
On Sunday, January 2, 2011, Pinckney again called Sanchez on
Sanchez’s personal cell phone and advised Sanchez that he would not be at work
the following day. (Sanchez Dep. at 64:18–65:2; Dkt. # 30-9.) When Sanchez
inquired whether Pinckney’s knee required surgery, Pinckney replied that he would
find out at his doctor’s appointment the next day. (Dkt. # 30-9.) During the call,
Sanchez informed Pinckney that he never received Pinckney’s medical
documentation and again requested that Pinckney send it via email. (Sanchez Dep.
8

at 55:8–13.) Sanchez also emailed his supervisor Lipinski to apprise him of
Pinckney’s situation. (Dkt. # 30-9.)
On Monday, January 3, 2011, Pinckney emailed the doctor’s note he
had obtained from the emergency room the previous Saturday to [e-mail].
He also visited Dr. John A. Evans, who examined Pinckney’s knee. (Dkt. # 30-6.)
Pinckney obtained a Return to Work Certificate from Dr. Evans indicating that he
could return to work on January 9, 20116 with the restrictions of “light duty, no
running, sedentary work only until next app[ointment] on 01/13/2011.” (Id.) It
was not until two days later, on January 5, 2011, that Pinckney emailed this
doctor’s note to [e-mail]. (Id.)
Pinckney did not attend work on Tuesday, January 4, 2011 and
provided no notification regarding his absence to anyone at the FRB. (See
Pinckney Dep. at 173:21–174:4; Dkt. # 28-2 (“Walker Decl.”) ¶ 5.) Later that day,
Lieutenant Richard Walker called Pinckney and received a message that

6

A copy of the doctor’s note from Dr. Evan’s office indicates a return to
work date of January 4, 2011, not January 9, 2011. At his deposition, Pinckney
stated that he obtained a second note with the date of January 9, 2011 from Dr.
Evan’s office, which was emailed to him by a nurse. (Pinckney Dep. at 151:18–
152:11). Pinckney agreed with counsel for the FRB that there is no record of any
such email in Pinckney’s inbox. (Id. at 154:8–155:8.)
9

Pinckney’s phone was out of service. (Walker Decl. ¶ 5.) The FRB’s telephone
records reflect that Pinckney never returned Walker’s call. (Id. Ex. B, Ex. 7.)
On Wednesday, January 5, 2011, Pinckney again did not attend work.
Pinckney emailed [e-mail], stating that he had an MRI scheduled the
following day and would be able to return to work by January 9th, “hopefully
sooner.” (Dkt. # 30-6.) According to Sanchez, Lipinski, and Walker, they did not
receive any communication from Pinckney on January 5, 2011. (See Walker Decl.
¶ 6; Sanchez Dep. at 65:3–7; Lipinski Dep. at 70:15–19.) According to Pinckney,
he had a missed call and voicemail from Lipinski that day. (Pinckney Dep. at
166:12–24.) Pinckney maintains that he returned Lipinski’s call within a few
minutes. (Id. at 166:18–21.) He allegedly left a voicemail on Lipinski’s phone
stating that he was sorry to have missed Lipinski’s call, but that his medication
caused him to fall asleep and that he “would be able to come back to work
[January] 9th as scheduled.”7 (Id. at 167:5–6.) The FRB’s phone records and

7

The FRB objects to the following statements contained in Tannen’s
declaration: “I also specifically remember overhearing a conversation in January
2011 in which Mr. Pinckney left an individual named Lipinski a voicemail. Mr.
Pinckney explained that he missed Lipinski’s call because he fell asleep, that Mr.
Pinckney would return to work that Monday, and if there were any questions to
call Mr. Pinckney back.” (Dkt. # 31-1.) The FRB contends that these statements
constitute inadmissable hearsay.
Federal Rule of Evidence 801(c) defines hearsay as a statement that:
“(1) the declarant does not make while testifying at the current trial or hearing; and
10

Lipinski’s cell phone records do not reflect an incoming call from Pinckney’s
phone number on January 5, 2011. (Id. Ex. 27.)
On Thursday, January 6, 2011, Lipinski contacted Donnie Martin, the
FRB Human Resources Manager in San Antonio, to determine the proper process
for terminating Pinckney’s employment. (Martin Decl. ¶ 11.) Martin advised
Lipinski of the SOP policy on job abandonment; namely, that an employee who is
“absent for two or more consecutive workdays” without notice is deemed to have
“abandoned” his employment. (See id.) Based on Lipinski’s information that
Pinckney had been absent from work since January 4th without any
communication, Martin approved the decision to consider Pinckney as having
abandoned the job. (Id.) The following day, on January 7, 2011, Pinckney’s
employment with the FRB was terminated. (Id.)

(2) a party offers in evidence to prove the truth of the matter asserted in the
statement.” Fed. R. Evid. 801(c). Thus, not every out-of-court statement is
hearsay. “If the significance of an offered statement lies solely in the fact that it
was made, no issue is raised as to the truth of anything asserted, and the statement
is not hearsay.” Fed. R. Evid. 801(c) advisory committee’s note; see United States
v. Cantu, 876 F.2d 1134, 1137 (5th Cir. 1989). In this case, to the extent the
contested statements are offered to prove Pinckney left a such a voicemail for an
individual named Lipinski “sometime” in January 2011, they are not hearsay and
therefore admissible. Moreover, Tannen laid a sufficient foundation of personal
knowledge because he lived with Pinckney and testified to overhearing the
statements at issue.
11

Three days after his termination, on January 10, 2011, Pinckney
returned to the FRB at 8:46 am. (Walker Decl. ¶ 7; Pinckney Dep. at
173:21–174:4.) According to Walker, Pinckney appeared significantly late for
what would have been his shift and in plain clothes instead of his uniform.
(Walker Decl. ¶ 7.) Walker met Pinckney at the door and informed him that his
employment with the FRB had been terminated due to job abandonment. (Id. ¶ 8;
Pinckney Dep. 174:10–18.) According to Pinckney, he informed Walker that he
had sent Sanchez the appropriate medical documentation for his absences and
asked to speak with a Human Resources representative. (Pinckney Dep. at
174:19–22.) Pinckney waited for thirty to forty-five minutes, but was informed
that no staff member in the Human Resources department wished to speak with
him. (Id. at 174:23–175:2.)
On February 4, 2011, the FRB’s third-party benefits administrator,
Aaron Hewitt, sent notice of Pinckney’s termination to SHPS, a third-party vendor
responsible for creating COBRA paperwork and mailing it to the individual who
experienced the COBRA-qualifying event. (Dkt. # 28-3 (“Pleasant Decl.”)
¶¶ 4–7.) SHPS promptly sent Pinckney’s COBRA paperwork via certified mail to
Pinckney’s correct address on February 10, 2011. (Id. ¶¶ 5, 9.) Pinckney claims
that he never received the paperwork. (Dkt. # 1 (“Compl.”) ¶¶ 46–47.)
12

III.

Pinckney’s Medical and Employment History After Termination
Pinckney’s medical records indicate that he had surgery on the

meniscus in his right knee on February 3, 2011. (Pinckney Dep., Ex. 25.)
According to Pinckney, he was confined to crutches for three to six weeks
following surgery and only slept three hours per night when not on medication.
(Dkt. # 30-14 ¶ 19.) He was “totally released” by his doctor in April 2011, four
months after first missing work due to alleged knee pain. (Pinckney Dep. at
113:4–6.) His doctor did not place any restrictions or physical limitations on him
after his release. (Id. at 113:4–14.) Nonetheless, Pinckney maintains that he was
not able “to fully go up and down stairs without making adjustments” until eight
months after his injury.8 (Dkt. # 30-14 ¶ 20.)
Since the termination of his employment with the FRB, Pinckney has
worked for Global Security Solutions as a uniformed, armed security guard. (Id. at
54:5–55:5.) In performing this job, Pinckney stands for hours without access to a

8

The FRB objects that this declaration statement is inconsistent with
Pinckney’s previous deposition testimony that he only had problems “not going up
stairs, but coming down, my knee would buckle under me.” (Dkt. # 31; see also
Pinckney Dep. 113:18–19.) It is “well settled” that a party may not “defeat a
motion for summary judgment using an affidavit that impeaches, without
explanation, sworn testimony.” S.W.S. Erectors v. Infax, Inc., 72 F.3d 489, 495
(5th Cir. 1996). While the Court acknowledges the inconsistency of the
declaration statement, the FRB has not explained how this inconsistency has been
used to create a genuine issue of material fact. The objection is overruled.
13

chair or podium. (Id. at 55:3–57:17.) He is also required to walk up and down
stairs, which he is able to do without any assistance. (Id. at 57:25–58:7.) Pinckney
has also performed lane closures for the Department of Transportation (id. at
59:5–15) and provided services at the Security Public Safety Training Institute (id.
at 61:7–9). Pinckney performed all of these physically demanding jobs without
requesting any accommodations. (Id. at 74:14–17.)
IV.

Procedural History
On April 10, 2012, Pinckney filed suit against the FRB, alleging that

the FRB discriminated against him in violation of the Americans with Disabilities
Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq. (Compl. ¶¶ 51–60.) More
specifically, he contends that his knee injury constitutes a “disability” under the
ADA and that the FRB failed to accommodate his disability and unlawfully
terminated his employment on account of his disability. (Id.) Pinckney also
alleges that the FRB violated the Employee Retirement Income Security Act of
1974 (“ERISA”), 29 U.S.C. § 1001 et seq., by failing to provide adequate and
timely notice of his right to continuing medical benefits under COBRA. (Id.
¶¶ 61–62.)
On February 15, 2013, the FRB filed a Motion for Summary
Judgment. (Dkt. # 27.) Soon thereafter, Pinckney filed a response in opposition to
14

the motion. (Dkt. # 30.) On March 15, 2013, the FRB filed a Motion to Strike
certain evidence offered in Pinckney’s response to the FRB’s Motion for Summary
Judgment. (Dkt. # 31.) It also filed a reply in support of its Motion for Summary
Judgment. (Dkt. # 32.) On March 27, 2013, Pinckney filed a response in
opposition to the FRB’s Motion to Strike. (Dkt. # 33.)
STANDARD OF REVIEW
Summary judgment is granted under Federal Rule of Civil Procedure
56 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);
see also Cannata v. Catholic Diocese of Austin, 700 F.3d 169, 172 (5th Cir. 2012).
The main purpose of summary judgment is to dispose of factually unsupported
claims and defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986).
The moving party bears the initial burden of demonstrating the
absence of any genuine issue of material fact. Id. at 323. If the moving party meets
this burden, the non-moving party must come forward with specific facts that
establish the existence of a genuine issue for trial. ACE Am. Ins. Co. v. Freeport
Welding & Fabricating, Inc., 699 F.3d 832, 839 (5th Cir. 2012). In deciding
whether a fact issue has been created, “the court must draw all reasonable
inferences in favor of the nonmoving party, and it may not make credibility
15

determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150 (2000). However, “[u]nsubstantiated assertions,
improbable inferences, and unsupported speculation are not sufficient to defeat a
motion for summary judgment.” Brown v. City of Hous., 337 F.3d 539, 541 (5th
Cir. 2003). “Where the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party, there is no ‘genuine issue for trial.’”
Matsuhita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).
DISCUSSION
The FRB argues that it is entitled to summary judgment because
Pinckney has failed to make a prima facie case of disability discrimination and, in
any event, has not demonstrated that the FRB’s stated reason for firing Pinckney
was mere pretext. The FRB also contends that it complied with the notice
provisions of COBRA by mailing the appropriate information to Pinckney’s last
known address ten days earlier than required by law. For the reasons given below,
Pinckney fails to raise a genuine issue of material fact with respect to his claims,
and the FRB is entitled to judgment as a matter of law.

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I.

Unlawful Termination Claim
The ADA makes it unlawful to “discriminate against a qualified

individual on the basis of disability in regard to job application procedures, the
hiring, advancement, or discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges of employment.” 42 U.S.C.
§ 12112(a).
Where, as here, only circumstantial evidence is offered to show
alleged unlawful employment discrimination under the ADA, courts apply the Title
VII burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). See McInnis v. Alamo Cmty. Coll. Dist., 207 F.3d 276, 279–80
(5th Cir. 2000). Under that framework, a plaintiff must establish a prima facie case
of disability discrimination by showing:
(1) He is disabled or is regarded as disabled; (2) he is qualified for the
job; (3) he was subjected to an adverse employment action on account
of his disability; and (4) he was replaced by or treated less favorably
than non-disabled employees.
Id. Once the plaintiff makes a prima facie showing, the burden shifts to the
employer to articulate a legitimate, non-discriminatory reason for the adverse
employment action. Id. If the employer provides such a reason, the burden shifts

17

back to the plaintiff to establish that the articulated reason was merely a pretext.
Id.
A.

Whether Pinckney Was Disabled
To satisfy the first prima facie element of his disability discrimination

claim for wrongful termination, Pinckney must establish that he suffered from a
qualifying disability. To qualify as disabled under the ADA, a plaintiff must prove
one of the following: “(A) a physical or mental impairment that substantially limits
one or more major life activities of such individual; (B) a record of such an
impairment; or (C) being regarded as having such an impairment.” 42 U.S.C.
§ 12102(1). Whether a person has a disability under the ADA is an “individualized
inquiry.” Sutton v. United Air Lines, Inc., 527 U.S. 471, 483 (1999) (overruled by
statute on other grounds).
i.

Actual Disability

To establish disability under the first prong of 42 U.S.C. § 12102(1), a
plaintiff must demonstrate that he or she had an “impairment,” that a “major life
activity” was limited by the impairment, and that the impairment “substantially
limited” that major life activity. Butler v. Exxon Mobil Corp., 838 F. Supp. 2d
473, 486 (M.D. La. 2012) (citing Waldrip v. Gen. Elec. Co., 325 F.3d 652, 654

18

(5th Cir. 2003)). “[M]ajor life activities include, but are not limited to . . .
sleeping, walking, standing, lifting, bending . . . concentrating, thinking,
communicating, and working.” 42 U.S.C. § 12102(2)(A). Whether an impairment
substantially limits a major life activity is to be determined “without regard to the
ameliorative effects of mitigating measures,” such as medication, equipment,
prosthetics, and other assistive technology. Id. § 12102(4)(E)(I). Furthermore,
“[a]n impairment need not prevent, or significantly or severely restrict, the
individual from performing a major life activity in order to be considered
substantially limiting.” 29 C.F.R. § 1630.2(j)(1)(ii). Rather, an impairment is a
disability if it substantially limits the individual’s ability to perform major life
activities compared to most people in the general population. Id.
Here, Pinckney contends that his knee injury constituted a disability
under the ADA because it “substantially limited” several major life activities,
including “walking, standing, bending, sleeping and performing manual tasks.”
(Dkt. # 30 at 11.) A knee injury is doubtless a “physical impairment” within the
meaning of the statutory language of the ADA. See 29 CFR § 1630.2(h)(1)
(“Physical . . . impairment means . . . [a]ny physiological disorder or condition . . .
affecting one or more body systems.”). However, prior to December 30, 2010,
there is simply no evidence that Pinckney was “substantially limited” in any major
19

life activity. Pinckney was able to participate in thirteen days of physically
demanding training immediately following the date of his alleged injury. Although
he maintains that he worked through pain, Pinckney was able to successfully
complete the training without requesting a modification or reporting an injury.
Moreover, Pinckney continued working at his physically demanding job for more
than a month after the alleged injury took place. Thus, he was not “disabled”
under the ADA definition of that term prior to December 30, 2010.
However, by December 30, 2010, Pinckney’s knee injury had
worsened to the point that he needed to see a doctor. Although the extent of his
injury was unclear when he first saw Dr. Paquette on December 30, 2010, he was
diagnosed with a possible torn meniscus and placed on “modified duty” for two
weeks with limited walking, no running, and “no ladders.” (Dkt. # 30-4.)
Additionally, several days later, Dr. Evans indicated that Pinckney could return to
work with the restrictions of “light duty, no running, sedentary work only until
next app[ointment] on 01/13/2011.” (Dkt. # 30-6.) Thus, at the time of his
termination, there is evidence that Pinckney was impaired in his ability to walk and
stand, which each constitute a “major life activity” under the statutory definition of
that term. Pinckney’s knee injury ultimately required surgery, which took place on
February 3, 2011. (Pinckney Dep. Ex. 25.) According to Pinckney, he was
20

confined to crutches for three weeks following surgery and only slept three hours
per night when not on medication. (Dkt. # 30-14 ¶ 19.) He was “totally released”
by his doctor in April 2011, four months after he first missed work due to alleged
knee pain. (Pinckney Dep. 113:4–6.) However, the Court notes that there is no
evidence in the record of Pinckney’s medical condition during the period between
his surgery and his January 3, 2011 appointment with Dr. Evans.
The FRB contends that Pinckney’s injury was not of sufficient
severity to have “substantially limited” any major life activity. Before Congress
passed the ADA Amendments Act of 2008 (“ADAAA”), Pub. L. No. 110–325,
122 Stat. 3553 (Sept. 25, 2008), the Supreme Court had held that the term
“substantially limits” was to be “interpreted strictly to create a demanding standard
for qualifying as disabled,” and that an impairment had to “prevent[ ] or severely
restrict[ ] the individual” from engaging in a major life activity. See Toyota Motor
Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197–98 (2002). As amended, the ADA
now provides that the definition of disability “shall be construed in favor of broad
coverage.” 42 U.S.C. § 12102(4)(A). New regulations enacted after the passage of
the ADAAA also provide that “substantially limits” is “not meant to be a
demanding standard,” although “[n]ot every impairment will constitute a disability

21

within the meaning of this section [of the ADA].” 29 C.F.R. § 1630.2(j)(1)(i)–(ii).
One court has explained:
[T]he ADAAA was adopted to specifically address certain
impairments that were not receiving the protection that Congress
intended—cancer, HIV-AIDS, epilepsy, diabetes, multiple sclerosis,
amputated and partially amputated limbs, post-traumatic stress
disorder, intellectual and developmental disabilities—not minor,
transitory impairments, except if of such a severe nature that one
could not avoid considering them disabilities.
Koller v. Riley Riper Hollin & Colagreco, 850 F. Supp. 2d 502, 513 (E.D. Pa.
2012) (citing 154 Cong. Rec. H8286 (2008) (statement of Rep. George Miller)).
While the limitation imposed by a qualifying impairment need no longer
“significantly” or “severely” restrict a plaintiff’s ability to perform a major life
activity, the limitation must nonetheless be “important.” See id. (citing 29 C.F.R.
pt. 1630 App. (2011)).
The FRB argues that Pinckney’s knee injury is analogous to the
plaintiff’s anterior cruciate ligament (“ACL”) tear in Koller v. Riley Riper Hollin
& Colagreco. See id. at 513. In Koller, the plaintiff had surgery on his ACL and
claimed that, for two weeks following the surgery, he was in pain, heavily
medicated, and had trouble staying awake and concentrating. Further, he had
“difficulty moving and driving because of the cast on his knee to reduce
movement.” Id. at 513–14. Despite these difficulties, the Koller court held that,
22

based on the facts as plead, the plaintiff’s torn ACL did not qualify as a disability,
even under the more generous standards promulgated by the ADAAA. Id. at
514–515.
Here, the Court need not decide whether Pinckney was “disabled”
under the ADA as of December 30, 2010 because his claim for wrongful
termination fails on other grounds. Thus, for the purposes of this Order, the Court
assumes without deciding that Pinckney is disabled under the ADA. See 29 C.F.R.
§ 1630.1(c)(4) (“The primary object of attention in cases brought under the ADA
should be whether covered entities have complied with their obligations and
whether discrimination has occurred, not whether the individual meets the
definition of disability.”).
ii.

Regarded as Disabled

A plaintiff whose impairment does not substantially limit any major
life activities may nevertheless bring suit under the ADA if he is “regarded as
having such an impairment.” 42 U.S.C. § 12102(1)(C). Until the passage of the
ADAAA, a plaintiff could establish he was “regarded as” disabled in this circuit if
he could show that: “(1) a covered entity mistakenly believes that [he] has a
physical impairment that substantially limits one or more major life activities, or
(2) a covered entity mistakenly believes that an actual, nonlimiting impairment
23

substantially limits one or more [of his] major life activities.” Kemp v. Holder,
610 F.3d 231, 237 (5th Cir. 2010) (quoting Sutton, 527 U.S. at 489, superseded by
Pub.L. No. 110–325 (2008)). This test required the plaintiff to “demonstrate that
the employer actually ‘entertain[ed] misperceptions about the individual . . .’” Id.
(quoting Sutton, 527 U.S. at 489).
The ADAAA makes clear that the “regarded as” disabled prong no
longer requires a showing that the employer perceived the individual to be
substantially limited in a major life activity. See 42 U.S.C. § 12102(3)(A) (“An
individual meets the requirement of ‘being regarded as having such an impairment’
if the individual establishes that he or she has been subjected to an action
prohibited under this chapter because of an actual or perceived physical or mental
impairment whether or not the impairment limits or is perceived to limit a major
life activity.”) (emphasis added); Brown v. City of Jacksonville, 711 F.3d 883, 889
(8th Cir. 2013). However, an individual may not be “regarded as” disabled if the
impairment was “transitory and minor.” Id. A transitory impairment is an
impairment with an actual or expected duration of 6 months or less. Id.
In this case, the FRB argues that Pinckney’s injury was “transitory
and minor.” There can be no dispute that Pinckney’s injury was “transitory”
because he was fully released by his doctor in April 2011—a mere four months
24

after he first missed work due to his knee injury. However, as discussed above, the
Court assumes without deciding that Pinckney’s injury was not “minor” and,
accordingly, now assumes without deciding that Pinckney was “regarded as”
disabled.
B.

Whether Pinckney Was Qualified for the Position
The second prima facie element Pinckney must establish is that he

was “qualified for the job.” See McInnis, 207 F.3d at 279. “A qualified individual
with a disability, under the ADA, is one who ‘with or without reasonable
accommodation, can perform the essential functions of the employment position
that such individual holds or desires.’” E.E.O.C. v. Chevron Phillips Chemical
Co., LP, 570 F.3d 606, 615 n.7 (5th Cir. 2009) (quoting 42 U.S.C. § 12111(8)).
Here, the FRB argues that Pinckney was not “qualified for the job”
because he failed to comply with the punctuality and attendance requirements of
his post. (See Dkt. # 27 at 17.) The Fifth Circuit has held that “regular attendance
is an essential function of most jobs.” Hypes ex rel. Hypes v. First Commerce
Corp., 134 F.3d 721, 727 (5th Cir. 1998); accord Vandenbroek v. PSEG Power CT
LLC, 356 F. App’x. 457, 460 (2d Cir. 2009) (holding that an employee who
violated the company’s “no call/no show” policy was not “qualified” because

25

reliable attendance was especially important to the plaintiff’s job where employees
had to be present to monitor a boiler and respond to alarms).
The FRB requires its law enforcement personnel to be punctual and to
have regular attendance as set forth in § 201.00 of the Standard Operating
Procedure manual (“SOP”) in the section regarding “Attendance and Punctuality.”
(Martin Decl. Ex. C.) The SOP provides that “[t]he successful and efficient
functioning of the Law Enforcement Unit is dependant upon the regular attendance
of all [the FRB’s] employees.” (Id.) Attendance and punctuality are critical to the
successful functioning of the Law Enforcement Unit because the FRB relies upon
Law Enforcement Officers like Pinckney to be physically present at the FRB to
ensure the safety of the FRB’s operations, employees, and patrons. The
importance of the FRB’s attendance policy is underscored by the SOP’s provision
on “Job Abandonment.” (Id.) Pursuant to that section, an employee that is absent
for two or more consecutive scheduled workdays and fails to notify his supervisor
of the reason for the absence is deemed to have abandoned his post. (Id.) The
SOP further warns that job abandonment “may lead to termination of
employment.” (Id.)
Pinckney acknowledged at his deposition that he never obtained the
approval of a supervisor to take leave from January 4, 2011 through January 9,
26

2011. (Pinckney Dep. at 168:2–3.) In fact, he never actually spoke to an FRB
employee during that period. The last time that an FRB employee heard from
Pinckney was when Pinckney placed his second phone call to Sanchez on Sunday,
January 2, 2011. In that conversation, Pinckney only asked for the following day
off of work due to a doctor’s appointment. There is no dispute that neither
Sanchez nor any other FRB employee received Pinckney’s January 5, 2011 email
indicating that, per his doctor’s instructions, Pinckney would miss work until
January 9, 2011. The only other communication with the FRB that Pinckney
claims to have made from the period between January 4, 2011 and January 9, 2011
was a voicemail that he allegedly left for Lipinski on January 5, 2011. However,
there is no evidence that the FRB ever received this call; there is no record of an
incoming call from Pinckney’s phone number on January 5, 2011 in either the
FRB’s phone records or Lipinski’s cell phone records, despite the fact that
previous calls from Pinckney’s phone number appear in those same records.
Pinckney acknowledged that the only other phone he might have used to call the
FRB was his roommate’s phone, and there was no record of a call from his
roommate’s phone number. (Id. at 190:1–12.) Lipinski himself testified that he
received no communication from Pinckney on January 5, 2011. Moreover, even
assuming that Lipinski received the voicemail from Pinckney, Pinckney merely
27

informed Lipinski that he was sorry to have missed Lipinski’s call and that he
would return to work on January 9, 2011 “as scheduled.” (Id. at 166:12–24.)
Thus, the message did not actually inform Lipinski, one of Pinckney’s supervisors,
of the reason for his absence as required by the SOP.
In sum, there is no evidence that the FRB ever received any
communication from Pinckney regarding the reason for his absences from work
between January 4, 2011 and January 9, 2011. Thus, the FRB appropriately
determined that Pinckney had abandoned his job under the terms of the SOP
manual. Because Pinckney did not meet the punctuality and attendance
requirements of his position, he was not “qualified for the job” and has failed to
establish the second prima facie element of disability discrimination.
C.

Whether Pinckney Was Subjected to an Adverse Employment Action
on the Basis of His Alleged Disability
The third prima facie element Pinckney must establish is that “he was

subjected to an adverse employment action on account of his disability.” See
McInnis, 207 F.3d at 279–80. The ADA prohibits discrimination “the basis of
disability” with respect to the terms, conditions, and privileges of employment. 42
U.S.C. § 12112(a). To make this showing of causation, the plaintiff need not show
that discrimination is “the sole reason for the adverse employment decision,” but
28

that it “actually play[ed] a role in the employer’s decision making process and
ha[d] a determinative influence on the outcome.” Pinkerton v. Spellings, 529 F.3d
513, 519 (5th Cir. 2008) (citation omitted) (internal quotation marks omitted).
Here, the FRB argues that the causal link between Pinckney’s
disability and his termination is broken because the FRB had no knowledge of
Pinckney’s disability. “[A]n employer cannot fire an employee ‘because of’ a
disability unless it knows of the disability.” Hedberg v. Indiana Bell Tel. Co., Inc.,
47 F.3d 928, 932 (7th Cir. 1995); accord Adeleke v. Dallas Area Rapid Transit,
487 F. App’x 901, 903 (5th Cir. 2012); Dooley v. Parks & Recreation for Parish of
E. Baton Rouge, 433 F. App’x 321, 326 (5th Cir. 2011).
The evidence shows that the FRB had no knowledge Pinckney was
actually disabled.9 Pinckney never reported his November 12, 2010 knee injury to
9

The Court notes that the very definition of a qualifying “disability” under
the “regarded as” disabled prong of 42 U.S.C. § 12102(1) contains causal
language. See 42 U.S.C. § 12102(3)(A) (stating that an individual is “regarded as”
disabled if she establishes that she “has been subjected to an action prohibited
under this chapter because of an actual or perceived physical or mental impairment
. . .”) (emphasis added). Thus, the third prima facie element of disability
discrimination appears to be subsumed into the definition of “regarded as”
disabled. Here, the FRB’s awareness that Pinckney had sustained a knee injury is
sufficient to impart knowledge of Pinckney’s impairment for the purposes of the
“regarded as” disabled prong. Additionally, the very close proximity in time
between when the FRB first learned of Pinckney’s impairment and Pinckney’s
termination—approximately one week—is sufficient to satisfy a prima facie
showing of causation. See Evans v. City of Houston, 246 F.3d 344 (5th Cir. 2005)
29

the FRB or requested any special accommodation following that injury. More than
a month after his injury, when Sanchez observed him limping, Pinckney merely
informed Sanchez that he had sustained knee injury in the past and that his knee
was “hurting.” (Sanchez Dep. at 36:12–37:24.) After a call from Pinckney later
that night, Sanchez learned that Pinckney’s doctor had advised him to stay home
the next day and that he had a possible torn meniscus, but that Pinckney was going
to seek a second opinion. The second phone call Pinckney made to Sanchez was to
inform Sanchez that he would miss work the following day due to a doctor’s
appointment and that he was uncertain whether his knee required surgery. Beyond
these two phone calls to Sanchez, the FRB received no further communication
from Pinckney regarding his absences or the nature of his injury. Although
Pinckney sent several emails with doctor’s notes to [e-mail], no FRB
employee received these emails.
In sum, the FRB had no reason to know of the severity or the extent of
Pinckney’s injury. Because the FRB never received any doctor’s notes or any
other medical documentation from Pinckney, the FRB had no knowledge of what
(finding a five-day lapse between an employee’s protected activity and an adverse
employment action sufficient to satisfy the “causal link” prong of a prima facie
retaliation claim, without any other evidence of a causal link). Thus, Pinckney has
adequately established the third prima facie element for the purposes of the
“regarded as” disabled prong of 42 U.S.C. § 12102(1).
30

type of physical limitations Pinckney’s injury had imposed upon him. The FRB
simply had no means to ascertain that Pinckney was suffering from an impairment
rising to the level of a disability. Moreover, the FRB was not under any obligation
to speculate as to the nature of Pinckney’s injury. Indeed, such a rule would
require employers to “don white coats and diagnose (correctly, no less) employees
having any potentially health-related difficulties at work.” Howard v. Steris Corp.,
886 F. Supp. 2d 1279, 1292–93 (M.D. Ala. 2012).
The FRB could not have terminated Pinckney’s employment on the
basis of a disability that it did not know existed. Pinckney has, accordingly, failed
to establish this prima facie element of his discrimination claim under the ADA.
D.

Whether Pinckney Was Replaced By, or Treated Less Favorably
Than, Non-Disabled Employees
The fourth prima facie element Pinckney must establish is that he was

“replaced by or treated less favorably than non-disabled employees.” See McInnis,
207 F.3d at 279–80. Pinckney has not identified a single similarly-situated, nondisabled employee who was treated more favorably than he by the FRB. He does,
however, generally contend that other unspecified Law Enforcement Officers had
the opportunity to apply for full-time positions with the FRB after their short-term
positions ended. However, these employees were only given this opportunity after
31

they completed their short-term assignments. Pinckney was not “similarlysituated” because he never completed his short-term assignment with the FRB.
Moreover, there is no evidence in the summary judgment record of examples of
any such individuals.
Pinckney also asserts that non-disabled individuals replaced him.
However, the FRB did not replace Pinckney because his employment was shortterm and scheduled to end by July 2011, at the latest. Thus, Pinckney has failed to
present any evidence to establish this prima facie element of his ADA claim.
E.

Pretext
Even assuming Pinckney established a prima facie case of

discrimination, the FRB has presented a legitimate, non-discriminatory reason for
terminating Pinckney’s employment, and Pinckney has not met the burden of
establishing by a preponderance of the evidence that the articulated reason was
merely a pretext.
First, the FRB has articulated a legitimate, non-discriminatory reason
for terminating Pinckney’s employment. Pinckney never notified or obtained the
approval of a supervisor for leave from January 4, 2011 through January 9, 2011.
As described above, the SOP manual for FRB employees provides that an

32

employee may be terminated due to “Job Abandonment” if an employee is absent
two or more consecutive work days without informing a supervisor. Because the
FRB never received any communication from Pinckney regarding his absences
from January 4, 2011 through January 9, 2011, it appropriately determined that
Pinckney had abandoned his job under the terms of the SOP manual. Thus, the
FRB had a legitimate, non-discriminatory reason to terminate Pinckney’s
employment.
Second, Pinckney has failed to establish pretext in this case. To
establish pretext, a plaintiff “must put forward evidence rebutting each of the nondiscriminatory reasons the employer articulates.” Wallace v. Methodist Hosp.
Sys., 271 F.3d 212, 220 (5th Cir. 2001). “A plaintiff may establish pretext either
through evidence of disparate treatment or by showing that the employer’s
proffered explanation is false or unworthy of credence.” Laxton v. Gap Inc., 333
F.3d 572, 578 (5th Cir. 2003) (citation omitted) (internal quotation marks omitted).
However, in attempting to establish pretext, a plaintiff cannot solely rely on his
subjective belief that discrimination has occurred. Price v. Marathon Cheese
Corp., 119 F.3d 330, 337 (5th Cir. 1997).
In this case, Pinckney argues that the FRB’s explanation that his
employment was terminated due to “job abandonment” is false or unworthy of
33

credence. Pinckney maintains that he was in “constant communication” with the
FRB. (Dkt. # 30.) However, this argument fails because, as discussed at length
above, Pinckney did not notify a supervisor of the reason for his absences for a
period of longer than two days—namely, from January 4, 2011 through January 9,
2011—in violation of the attendance requirements set forth in the SOP.
Pinckney next points out that the reason the FRB lists in its computer
database for Pinckney’s termination is not “Job Abandonment,” but rather “Job
Dissatisfaction.” (Dkt. # 30.) However, Pinckney offers no evidence as to the
source of this coding or when it was entered in the database. Moreover, the term
“job dissatisfaction” is not inconsistent with the concept of “job abandonment.”
This evidence is simply insufficient to sustain an inference that the FRB’s cited
reason for Pinckney’s termination was pretextual.
Pinckney also argues that Sanchez intentionally gave him a “false
email address.” (Dkt. # 30.) However, this allegation is entirely speculative and is
not corroborated by any evidence in the record. Without more, it is insufficient to
show the FRB’s proffered reason for Pinckney’s termination was mere pretext.
See Brown, 337 F.3d at 541 (“Unsubstantiated assertions, improbable inferences,
and unsupported speculation are not sufficient to defeat a motion for summary

34

judgment.”). Pinckney admits that nether Sanchez nor any other FRB employee
ever spoke negatively about his knee injury. (Pinckney Dep. at 181:12–182:3).
Moreover, Sanchez had no authority to fire Pinckney and took no part in the
decision to ultimately terminate Pinckney’s employment. Lipinski, the FRB
employee who did possess such decision-making authority, did not rely solely
upon a lack of email communication in making the decision to terminate
Pinckney’s employment; Lipinski and Walker both attempted to contact Pinckney
directly by telephone, all to no avail.
Finally, Pinckney contends that the FRB has exhibited bias against
injured workers because it does not have “light duty accommodations” and because
Lipinski was allegedly disciplined for an injury that he sustained. (Dkt. # 30.)
However, neither of these assertions are supported by the record. Lipinski testified
in his deposition that the FRB does not have a “limited work duty status,” but
further elaborated that when limited or modified duty is requested by an employee,
“each case is different” and the FRB assesses each employee’s needs on an
individual basis to determine how they may be accommodated. (Lipinski Dep. at
37:21–38:14.) In regards to Lipinski’s own injury, he was injured in a basketball
game and was granted an accommodation of two-weeks leave. (Id. at 81:23–82:4.)
Lipinski actually testified that he was not disciplined, but that his previous
35

supervisor, who had no involvement in Pinckney’s employment, discussed with
him the importance of “protecting” himself following his injury. (Id. at 82:18–22.)
Rather than establishing that the FRB had ulterior motives for firing Pinckney, this
evidence merely demonstrates that the FRB had a policy of granting its law
enforcement personnel accommodations on a case-by-case basis depending on the
particular employee’s needs.
In sum, Pinckney has failed to establish by a preponderance of the
evidence that the FRB’s decision to terminate Pinckney’s employment due to “job
abandonment” was mere pretext. Accordingly, Pinckney’s ADA discrimination
claim for wrongful termination fails as a matter of law.
II.

Accommodation Claim
Pinckney also alleges that the FRB failed to accommodate his

disability. Under the ADA, an employer “discriminates” against an employee if it
fails to make “reasonable accommodations to the known physical or mental
limitations of an otherwise qualified individual with a disability.” 42 U.S.C.
§ 12112(b)(5)(A).
“Because the ADA requires employers to accommodate the
limitations arising from a disability, and not the disability itself, an employee

36

seeking to assert a disability claim must produce evidence that the employer knew
not only of the employee’s disability, but also of the physical or mental limitations
arising therefrom.” Seasman v. CSPH, Inc., 179 F.3d 297, 300 (5th Cir. 1999)
(citations omitted). In other words, to prove discrimination, “an employee must
show that the employer knew of such employee’s substantial physical or mental
limitation.” Taylor v. Principal Fin. Grp., 93 F.3d 155, 163 (5th Cir. 1996).
For the reasons already described above, the FRB had no reason to
know that Pinckney’s knee injury rose the level of a disability, let alone the
particular accommodations his impairment required. The FRB was only aware that
Pinckney had possibly torn his right meniscus and that Pinckney had twice
informed Sanchez that he would miss work due to doctor’s appointments. The
FRB never received any of Pinckney’s emails containing doctor’s notes relating to
his injury and absences; thus, it could not have known of the physical restrictions
placed on Pinckney by various doctors. Additionally, Pinckney never spoke in any
detail about his injury to an FRB employee. Thus, the FRB had no reason to know
of any limitations imposed by Pinckney’s knee injury.
Moreover, Pinckney never requested an accommodation from the
FRB at the time of his injury. Although Pinckney now asserts that reasonable
accommodations would have consisted of a week of leave, followed by a week of
37

light duty, he never requested these from the FRB. “If the employee fails to
request an accommodation, the employer cannot be held liable for failing to
provide one.” Taylor, 93 F.3d at 165.
Citing Criado v. IBM Corp., 145 F.3d 437 (1st Cir. 1998), Pinckney
contends that the events preceding his termination amounted to a “mere
miscommunication” and that the FRB should have engaged in the “interactive
process” with him after termination of his employment. In Criado, the plaintiff
suffered a mental disability and was granted leave by her employer, IBM, after she
supplied appropriate documentation of her condition from her doctor. Id. at 440.
Her doctor subsequently determined that she needed extended leave and conveyed
this information via fax to IBM. Id. IBM never received the doctor’s fax
requesting additional leave and decided to terminate the plaintiff’s employment
without advance notice. Id. The First Circuit held that, because IMB was “on
notice” of Criado’s disability and had already granted her an accommodation, it
had a duty to continue communication with her prior to ending her employment.
Id. at 444.
Here, the FRB was not “on notice” of any limitations arising from
Pinckney’s alleged disability, and Pinckney never made a request for
accommodation prior to termination. Pinckney only arrived back to work days
38

after the FRB had made attempts to contact him and had concluded that he
abandoned his job. Moreover, while the SOP has a general policy that employees
can meet with a Human Resources representative to discuss any employmentrelated concern, the FRB was not obligated to meet with Pinckney once he was no
longer an employee. “[A]n employee who requests only the opportunity to return
to an unmodified, previously-held position fails to state a cognizable claim under
42 U.S.C. § 12112(b)(5).” Burch v. Coca-Cola Co., 119 F.3d 305, 314 (5th Cir.
1997). Such a request is merely a plea for “grace.” See id. at 319 n.14.
In sum, Pinckney cannot sustain a disability discrimination claim
under the ADA based on failure to accommodate. The Court therefore grants the
FRB’s motion insofar as it seeks judgment on that claim.
III.

Claim for COBRA Violations
COBRA requires sponsors of group health plans to provide plan

participants who lose coverage because of a “qualifying event” with the
opportunity to choose to continue health care coverage on an individual basis.
Degruise v. Sprint Corp., 279 F.3d 333, 336 (5th Cir. 2002) (citing 29 U.S.C.
§§ 1162, 1163). A “qualifying event” includes the termination of a covered
employee’s employment. 29 U.S.C. § 1163(2). “[A]n employer has a duty to
report most qualifying events, including the termination of employment, to its
39

group health plan administrator within 30 days of the qualifying event. The plan
administrator must then notify the qualified beneficiary within 14 days of being
notified of the qualifying event by the employer.” Miles-Hickman v. David
Powers Homes, Inc., 589 F. Supp. 2d 849, 878 (S.D. Tex. 2008) (citing 29 U.S.C.
§ 1166(c)). When an employer is also the administrator of the health plan, the
employer must give detailed written notice of the availability of COBRA benefits
within 44 days after the date of the qualifying event. Id. (citing 29 C.F.R.
§ 2590.606-4(b)).
Here, Pinckney’s “qualifying event” under COBRA—i.e. the
termination of Pinckney’s employment with the FRB—occurred on January 7,
2011. On February 4, 2011, Hewitt, the health plan administrator for the FRB,
informed SHPS of this qualifying event. On February 10, 2011, SHPS sent a
COBRA notification to Pinckney’s last known address via certified mail. Thus, the
FRB timely informed its plan administrator of the qualifying event within thirty
days and Pinckney’s COBRA notification was timely sent by SHPS less than
fourteen days later.
Pinckney contends that he never received his COBRA notice.
However, the Fifth Circuit has held that employers are not “required to ensure that
plan participants actually receive [COBRA] notice,” but are merely obligated to act
40

in good faith and to use means “reasonably calculated” to reach plan participants.
Degruise, 279 F.3d at 336. The COBRA notice requirements are satisfied when
the notification is sent via certified mail. Id. at 337. Because the FRB has
produced evidence that it timely sent Pinckney the appropriate notices via certified
mail, it is entitled to judgment as a matter of law on this claim.
IV.

Motion to Strike
The FRB brings a Motion to Strike, asking that the Court remove from

the record certain evidence brought by Pinckney in his Response to Defendant’s
Motion for Summary Judgment. (Dkt. # 33.) The Court has addressed the FRB’s
objections to various declaration statements in the “Background” section portion of
this Order. Those objections were granted in part and denied in part. To the extent
that the FRB brings other objections not addressed in this Order, they pertain to
matters not material to this Court’s holding on summary judgment and are denied
as moot.
CONCLUSION
For the reasons stated above, the Court GRANTS Defendant’s
Motion for Summary Judgment (dkt. # 27) and GRANTS IN PART AND
DENIES IN PART Defendant’s Motion to Strike (dkt. # 31).

41

IT IS SO ORDERED.
DATED: San Antonio, Texas, September 30, 2013.

_____________________________
David Alan Ezra
Senior United States District Judge

42