Gonzalez v. United Parcel Service
Filing
31
MEMORANDUM OPINION AND ORDER, The Court will GRANT UP S's Motion for Summary Judgment as to Gonzalez's Title VII and ADA claims, DISMISS Gonzalez's FMLA claims with prejudice pursuant to Fed. R. Civ. P. 41(b)(2), DENY UPS's Motion for Summary Judgment as to Gonzalez's FMLA claims as moot, and DENY UPS's Request for Attorney's Fees. Signed by Judge Royce C. Lamberth. (wg)
FILED
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTIONIO DIVISION
SEP 2 8
CLERK,
U.S.
2018
DISçRICT CLERK
VSTERN DTRlT OF TEXAS
BY
)
RONALD GONZALEZ,
f
)
PIaint?/j;
)
Civil No. 5:15-CV-986-RCL
)
v.
)
)
UNITED PARCEL SERV., INC.,
)
Defendant.
)
)
)
MEMORANDUM OPINION
Before the Court is Defendant United Parcel Service, Inc. (Ohio)'s ("UPS") Motion for
Summary Judgment (ECF No. 14), Plaintiff Ronald D. Gonzalez's ("Gonzalez") Response (ECF
No. 19), Defendant's Reply (ECF No. 20), and Plaintiffs Sur-Reply (ECF No, 30). After
reviewing the pleadings and the record in its entirety, the Court will GRANT UPS's Motion for
Summary Judgment in part, DISMISS Gonzalez's Family Medical Leave Act ("FMLA") claims
with prejudice, and DENY UPS's Motion for Summary Judgment in part as moot. The Court will
DENY UPS's request for attorney's fees.
BACKGROUND
This case arises under the anti-discrimination and anti-retaliation provisions of Title VII of
the Civil Rights Act of 1964 ("Title VII") and the Americans with Disabilities Act ("ADA"),
codified at 42 U.S.C.
§
2000e etseq. and 42 U.S.C.
§
12101
initially alleged that UPS violated the FMLA, 29 U.S.C.
§
etseq.,
2601
respectively. Gonzalez also
et seq.
FMLA claim in his Response to UPS's Motion for Summary Judgment.
Gonzalez withdrew his
See
ECF No. 19-1, at 37.
In or about August 2007, Gonzalez assumed employment as an Inside Sales Representative
("ISR") at UPS's San Antonio facility. ECF No. 14-1, at 2 ¶
1.
At some point in or about 2009,
DEPUTY
Gonzalez was diagnosed with Reflex Sympathetic Dystrophy, which caused him to experience
chronic pain in his right hand. ECF No. 19-1, at 7 ¶ 2. During that year, he took a medical leave
of absence for an unspecified duration. ECF No. 14-1, at 5 ¶ 9. When he returned to work, he had
no cognitive restrictions. Id.
Gonzalez remained in his TSR role until or about June 2011, when he laterally transferred
into an Enterprise Account Inside Sales Representative ("EAR") positIon. ECF No. 14-1, at 2
¶
The essential job functions of each role were practically identictl. See Id. at 3 2;
¶
see also
1.
ECF
No. 19-1, at 13. In his role as an TSR, Gonzalez worked in "growing the sales of UPS's products
and services to independent, private businesses." Id. As an EAR, Gonzalez performed essentially
the same job functions, but was assigned to larger accounts. Id On or about October 27, 2011,
Gonzalez took short-term disability leave through March 12, 2012. ECF No. 19-1, at 7 2. After
¶
he returned to work, he had no cognitive restrictions. ECF No. 14-1, at 4 9.
¶
In or about April 2013, Gonzalez requested FMLA leave to care for a second condition
related to his shoulder. Id. at 6 ¶ 10. On or about April 18, 2013, Gonzalez had surgery on his
hand. ECF No. 19-1, at 7 ¶ 2. UPS granted Gonzalez's FMLA leave request, which guaranteed
him certain substantive protections until July 2013. ECF No. 14-1, at 6 10; ECF No. 19-1, at 7
¶
¶ 2. Gonzalez simultaneously applied for short-term disability benefits through UPS's sponsored
provider in or about April 2013. ECF No. 14-1, at 6 ¶ 11.
In or about October 2013, Gonzalez applied for long-term disability benefits through UPS's
sponsored provider.
Id; ECF No.
19-1, at 7 ¶ 2. On or about October 22, 2013, Gonzalez and a
medical provider submitted to the long-term disability insurance provider that Gonzalez is and was
completely unable to work in any capacity. ECF No. 14-1, at 6 ¶ 11.
2
In or about January 2014, UPS notified Gonzalez that be had been out of work since April
2013, and reminded him of UPS's reasonable accommodation policy. Id. at 8 ¶ 15; ECF No. 191,
at 7 ¶ 3. On or about February 3, 2014, Gonzalez notified UPS of his intention to return to his
position and requested an accommodation of his work-related restrictions. ECF No. 14-1, at 8 ¶
15; ECF No. 19-1, at 8 ¶ 4. On or about February 21, 2014, UPS provided Gonzalez with
a
"Request for Medical Information" to be completed by his medical provider. ECF No. 14-1, at 8
¶ 16. Gonzalez signed the release and returned it to UPS, who then sent it to Gonzalez's medical
provider. ECF No. 19-1, at 8 ¶ 5.
At some time in or about March 2014, the medical provider returned the form to UPS. ECF
No. 19-1, at 8 ¶ 5. Therein, the medical provider wrote, "[Gonzalez] is currently unable to work
for 4 hours or greatr due to [his] inability to do repetitive motions." ECF No. 14-6, at 4; ECF Na.
19-6, at 1. The provider added that "[Gonzalez] [w]ould like to consider [returning to work] with
accommodations after 3/15/14, possibly 4 hours a day, no lifting over 5 lbs. if available." Id. The
medical provider also indicated that was "unable to do continuous, repetitive movements of [his]
upper extremities" and that he had a "decreased ability to make decisions due to medications
prescribed." ECF No. 14-6, at 3; ECF No. 19-5, at 23. Gonzalez admits that "[t]he medications
prescribed to [him] do cause drowsiness." ECF No. 19-1, at 10 ¶ 13.
While receiving long-term disability benefits, in or about March 2014, Gonzalez applied
for Social Security Disability Insurance ("SSDI") benefits. ECF No. 14-1, at 7 ¶ 13. In applying
for those benefits, he submitted to the federal government, under penalty of perjury, that he was
unable to make repeated use of his upper extremities and that his chronic pain "emotionally
impact[ed] [his] ability to focus and concentrate." Id. He further submitted that "[w]ith the chronic
pain of both extremities and pain medication, I do not have the physical and mental ability to
3
perform this role." Id UPS was unaware that Gonzalez applied for SSDI benefits while on
company-sponsored long-term disability leave. Id.
Gonzalez's application for SSDI benefits was approved and he received retroactive
payments dating to October 2013. Id. at 7 ¶ 14. Gonzalez received monthly payments of $918
from the third-party long-term disability insurance provider, $2,050 from the Social Security
Administration for his SSDI, and an additional $1,069 until his minor dependent child's eighteenth
birthday. Id.
On or about April 10, 2014, Gonzalez met with UPS's Human Resources personnel to
discuss Gonzalez's accommodation request. ECF No. 14-1, at 9 ¶ 17; ECF No. 19-1, at 8 ¶ 5. At
that meeting, and in accord with the medical provider's statements, Gonzalez requested a part-time
work schedule and an ergdnomic work station. ECF No. 14-1, at 9 IT 17; ECFNo. 14-1, at 9 ¶ 8.
Gonzalez was unable to identify any accommodations that would address his significant cognitive
impairments that precluded him from concentrating. ECF No. 14-1, 9 ¶ 17. Gonzalez admits that
his medication regimen would change from time to time and that he "had some reactions to some
medications," but that this was "just part of the treatment process." ECF No. 19-1, at 10 ¶ 9. The
record is devoid of any indication that Gonzalez expressed concerns about discrimination during
the April 10, 2014 meeting.
After the April 10,2014 meeting, UPS concluded that it could not reasonably accommodate
Gonzalez's request. ECF No. 14-1, at 9 ¶ 18. Human Resources personnel searched for vacant
part-time positions that did not require sharp cognitive functioning at UPS, but no such positions
were available. Id. at 9-10 ¶ 18. On or about April 21, 2014, UPS informed Gonzalez of its
inability to accommodate his request. Id. at 10 ¶ 19. On or about May 1, 2014, UPS terminated
Gonzalez's employment. Id.; ECF No. 19-1, at 10 ¶ II.
4
On or about May 22, 2014, Gonzalez filed his Charge of Discrimination with the EEOC
alleging discrimination under Title VII and the ADA.
ECF No. 14-26 (EEOC Charge of
Discrimination dated May 22, 2014). Gonzalez admits that this the first time he complained of
any wrongftil conduct by UPS.
ECF No. 14-2 (Deposition of Ronald D. Gonzalez of May 24,
2017), at 50.
On or about March 4, 2015, Gonzalez amended his Charge of Discrimination to include
allegations of retaliation under Title VII, the ADA, and the FMLA. ECF No. 14-27 (Amended
EEOC Charge of Discrimination dated March 4, 2015).
On or aboutJuly 31, 2015, the EEOC Issued its "Dismissal and Notice of Rights," whereii
it was "unable to conclude that the information obtained" during the course of its
investigation
"establishe[d] violations of the statutes:" ECF No. 14-28 (Dismissal and Notice of Rights dated
July 31, 2015), at 2.
On or about November 10, 2015, Gonzalez filed the instant action. See ECF No. 1. On or
about April 5, 2017, Gonzalez filed an action against Aetna Life Insurance Company, wherein he
alleged, under oath and under penalty of perjury, inter alia, that at times relevant to the instant
action against UPS beginning in or about April 2013, he "suffered from [physical ailments] that
prevented him from returning to work for UPS." Gonzalez v. Aetna Life Ins. Co., No. 5:17-CV00266, Compi., Dkt. No.
1 ¶11
4-8 (W.D. Tex. filed Apr. 5, 2017).
LEGAL STANDARD
A moving party is entitled to summary judgment upon showing 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 Meadaa
v.
KA.P. Enters., LLC, 756 F.3d 875, 880 (5th Cir. 2014). A
dispute is genuine only
"if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.s 242, 248 (1986).
Initially, the movant bears the burden of demonstrating the absence of any genuine issue
of material fact. See Celotex Corp.
v.
Catrett, 477 U.S. 317, 323 (1986). If the moving party
meets this burden, then the non-movant must come forth to "identify specific evidence in the
summary judgment record demonstrating that there is a material fact issue concerning the essential
elements of [his] case." Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994). If the record, 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." Hiliman
Indus. Co., Ltd.
v.
v.
Loga, 697 F.3d 299, 202 (5th Cir. 2012) (quoting Matsushita Elec.
Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
In deciding whether a fact issue has been created, when eva1uting whether to grant a
motion for summary judgment, the Court draws "all reasonable inferences in favor of the
nonmoving party, and it may not make credibility determinations or weigh the evidence." Kevin
M Ehringer Enters.
v.
v.
McData Servs. Corp., 646 F.3d 321, 326 (5th Cir. 2011) (quoting Reeves
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).
Critically, however,
[u]nsubstantiated assertions, improbable inferences, and unsupported speculation are not
sufficient to defeat a motion for summary judgment." United States v. Renda Marine, Inc., 667
F.3d 651, 655 (5th Cir. 2012) (quoting Brown
v.
C'Iy of Houston, 337 F.3d 539, 541 (5th Cir.
2003)). Further, "[mJere conclusory allegations" are likewise iisufficient to overcome a motion
for summary judgment. Akene
Turner
v.
v.
Goodwill Indus. of Cent. Tex., 2018 WL 1128149, at *2 (citing
Baylor Richardson Med Ctr., 476 F.3d 337, 343 (5th Cir. 2007)).
Accordingly, "Rule 56 'mandates the entry of summary judgment, after adequate time for
discovery and upon motion, against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party's case, and on which that party will bear the burden
of proof at trial."
Corp.,
Little
v.
LiquidAir Corp.,
37 F.3d 1069, 1075 (5th Cir. 1994) (quoting
Celotex
477 U.S. at 322.).
DISCUSSION
I.
Title VII Discrimination & Retaliation Claims
Gonzalez claims that UPS discriminated against him based on his disability status, in
contravention of Title VII, when it altered the terms and conditions of the parties' employment
relationship. Compl., ECF No.
42 U.S.C.
§
2000e-2
et seq.).
1
at ¶f 13-14 (citing "Title VII,' which is codified as amended at
UPS admits that it terminated Gonzalez's employment on May 1,
2014. ECF No. 14-1, at 10 ¶ 19. It maintains, however, that Gonzalez fails to establish aprima
facie
case of Title VII or retaliation, for two reasons: (1) "he was not qualified for any position
with UPS" and (2) he "did not engage in protected activity prior to his termination." Defendant's
Motion for Summary Judgment, ECF No. 14, at 6.
Title VII provides that it is "an unlawful employment practice for an employer
.
.
.
to
discharge any individual, or otherwise to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such
individual's race,
color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1) (emphasis added). The statute
further provides that it is "an unlawful employment practice for an employer to discriminate
against
any of [its]
employees
.
. .
.
because he has opposed any practice made an unlawful
employment practice, or because he has made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing[.]" Id.
7
§
2000e-3(a) (emphases added).
These provisions are not coterminous and the analysis of each claim is distinct. See
Burlington N & Santa Fe. Ry. Co.
v.
White, 548 U.S. 53, 67 (2006). Indeed, the scope
of Title
Vii's anti-retaliation provision is broader than the substantive discrimination provision. See id.
The Court finds that Gonzalez presents no cognizable claim under Title VII's anti-
discrimination provision because even if, arguendo, UPS discriminated against him, Gonzalez has
not established that UPS did so "because of' his "race, color, religion, sex, or national origin." 42
U.S.C.
§
2000e-2(a)(l). Gonzalez never identifies the alleged protected class to which he belongs
in any of his pleadings, nor does he advance any factual or legal arguments explaining how UPS
allegedly discriminated or retaliated against himbecause of his membership in that protected class.
See ECF Nos. 1, 19-1, and 23-1.
Relatedly, the Court finds that Goizalez does not establish aprimafacie claim under Title
Vii's anti-retaliation provision because he fails to establish a causal connection between UPS's
decision to terminate his employment and his protected activity.
Accordingly, the Court will GRANT UPS's Motion for Summary Judgment as to
Gonzalez's Title VII claims.
a,
Gonzalez does not establish a prima facie claim of Title VII discrimination.
To establish a prima facie claim of unlawful discrimination under Title VII, a plaintiff
bears the initial burden to produce facts which, if true, would permit a reasonable inference of
discrimination. See Reeves, 530 U. S. at 142. The burden is one of production, not persuasion. Id
To establish this initial inference, a plaintiff must show that (1) he was a member of a protected
class; (2) he was qualified for his position; (3) he suffered an adverse employment action; and (4)
other similarly-situated employees outside of his protected class were treated more favorably.
Bryan
v.
McKinsey & Co., 375 F.3d 358, 360 (5th Cir. 2004) (citing Okoye
8
v.
Univ. of Tex. Hous.
Health Sd. Ctr., 245 F.3d 507, 512 (5th Cir. 2001)). Where, as here, a plaintiff's discrimination
claim sounds in disparate treatment, he is further required to establish that (5) the similarly-situated
employees were treated more favorably "under nearly identical circumstances." Lee v. Kan. City
S. Ry.
Co., 574 F.3d 253, 259 (5th Cir. 2009).
Only if be meets this initial burden does the burden "then shift[] to the employer to articulate
some legitimate, nondiscriminatory reason for the" employer's action. McDonnell Douglas Corp.
v.
Green,411 U.S. 792, 802 (1973).
A plaintiffs initial burden is "not onerous[,]" but he must "prove by a preponderance of
the evidence" that an employer's alleged actions, if true, "give rise to an inference of
discrimination." Tex. Dep 't
of Cmty.
Affairs
v.
Budine,
450 U.S. 248, 253 (1981) (footnote
omitted). At all times, "[t]he plaintiff retains the burden of persuasion." Id. at 256.
i.
Gonzalez does not allege, nor does the record provide any evidence,
that he is a member of a Title VII protected class.
On this record, Gonzalez does not establish even the first prong of this familiar test:
whether he is a member of a protected class. He does not identify his race, color, religion, or
national origin in any of his pleadings. See ECF Nos. 1, 19-1, and 23-1. Nor does the factual
record identify whether Gonzalez is a member of any of those protected groups. See id. Instead,
Gonzalez spills great quantities of ink criticizing UPS for "fail[ing] to construe the facts and
inferences in favor of [Gonzalez]," and yet entirely fails to give this Court the very facts it needs
to ascertain whether Title VII is even applicable in this case. ECF No. 19-1, at 11. See also Id. at
12-13; 24-26; ECF No. 23-1, at 2-3.'
The Court does not understand plaintiff's counsel's preoccupation with his oft-repeated contention that defense
counsel is "construing the available evidence against the Plaintiff." ECF. No. 30, at 2 (emphasis in original). Defense
counsel is under a professional and ethical obligation to "act with competence, commitment, and dedication to the
interest of [its] client and with zeal in advocacy upon the client's behalf." Tex. R. Prof. Resp. 1.01 cmt. 6. It is the
Indeed, while the Court must view all of the evidence in the light most favorable to
Gonzalez at this stage, it can only do so if it has such evidence before it in the first instance. See
Matushita Elec. Indus. Co.
v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). The Court is
precluded from making its own inferences where a party does not proffer the facts necessary to
establish a presumption in the first instance and overtly fails to do so. See, e.g., Price
v.
Fed
Express Corp., 283 F.3d 715, 724-25 (5th Cir. 2002) (affirming grant of summary judgment
because of"fail[ure] to present evidence from which a factfinder could infer" any discrimination).
Accordingly, because Gonzalez fails even to articulate the Title VII "protected class" to
which he belongs, the Court finds that he has not met his initial burden to establish aprimafacié
case of Title VII discrimination.
ii.
The Coutt cannot ascertain whether UPS treated other siniilarlysituated individuals more favorably because Gonzalez does not
provide the Court with the alleged protected class to which he
belongs.
Similarly, because Gonzalez does not allege that he is a member of a protected class, and
because the record is devoid of any evidence from which the Court could reasonably infer such
membership, he necessarily fails to establish that "he was treated less favorably because of his
membership in that protected class than were other similarly situated employees who were not
members of the protected class, under nearly identical circumstances." the final element of aprima
facie Title VII discrimination claim. Lee, 574 F.3d at 259 (emphasis added); accord McDonnell
Douglas Corp., 411 U.S. at 802.
Even if, arguendo, the Court could infer that Gonzalez is a member of a racial or ethnic
minority, he fails to identify any similarly-situated comparators outside of that racial or ethnic
Court, not the litigants, who is obligated by Rule 56 to "draw all reasonable inferences in favor of the nonmoving
party" when determining whether to grant summary judgment. Reeves, 530 U.S. at 150 (citations omitted).
10
class whom UPS treated more favorably because of their non-membership in the protected class.
Cf Id., 574 F.3d at 261. The only evidence in the record that hints at disparate treatment is
submitted by UPS.
See
Charge of Discrimination, ECF No. 14-26. Therein, Gonzalez alleged that
"[t]wo Anglo Inside Sales Representatives were given reasonable accommodations for their
disabilities and allowed to return to work." Id. at 2.
See also
ECF No. 14-2, at 60-61 (Gonzalez
asserts a belief that two white individuals requested a reasonable accommodation and were granted
that accommodation).
However, Gonzalez presents no specific evidence, and the record is devoid of any, to show
that the employment actions taken against those "Anglo" comparators were "under nearly
identical circumstances."
Lee,
574 F.3d at 260 (quoting Little
v.
Rep.
Ref
Co., Ltd.,
924 F.2d 93,
97 (5th Cir. 1991)). To meet his burden, Gonzalez was required to produce some evidence that
those "Anglo" employees "held the same job or responsibilities, shared the same supervisor or had
their employment status determined by the same person, and ha[d essentially comparable
violation histories," and that their requests for accommodation were approved while his was not.
Id. Indeed, "[u}nsubstantiated assertions.
judgment." Renda
Marine,
Inc.,
667
. .
are not sufficient to defeat a motion for summary
F.3d at 655 (internal quotation omitted). Instead, in his
deposition, Gonzalez denied that he had any personal knowledge of whether either of the two
purported comparators requested or received a job-related accommodation from UPS.
See
ECF
No. 14-2, at 61. The record contains no evidence that demonstrates that either of the two alleged
comparators was "similarly-situated."
Accordingly, because Gonzalez fails to identify specific, relevant comparators outside of
his racial or ethnic class whom UPS allegedly treated more favorably, the Court finds that
Gonzalez failed to meet his initial burden under McDonnell Douglas. The Court thus need not,
11
and does not, evaluate whether UPS asserted a "legitimate, nondiscriminatory reason" for
terminating Gonzalez for the purposes of his Title VII discrimination claim, because he does not
clear the initial threshold burden under that provision.
b.
Gonzalez does not establish a prima facie claim of Title VII retaliation.
As with a Title VII discrimination claim, to establish a prima facie claim of Title VII
retaliation, a plaintiff bears the initial burden to produce facts which,
if true, would permit a
reasonable inference of unlawful retaliation. Cf Reeves, 530 U.S. at 150-51. Such a showing
requires a plaintiff to demonstrate that (1) he engaged in activity protected by Title VII; (2) the
employer took an adverse action against him, and (3) a eaus4l connection exists between the
protected activity and the materially adverse action Aryazn v Wal-Mart Stores Tex LP, 534 F 3d
473, 484 (5th Cir. 2008) (emphasis added); accord White, 548 U.S. at 70-71.
Only after a plaintiff "makes aprimafacie showing, the burden then shifts to the employer
to articulate a legitimate,
.. . nonretaliatory reason for its employment action."
McCoy
v.
City of
Shreveport, 492 F.3d 551, 557 (5th Cir. 2007) (footnote omitted). As with a plaintiff's burden, an
employer's burden "is only one of production, not persuasion, and involves no credibility
assessment." Id (citation omitted). The burden then shifts back to the plaintiff, who "bears the
ultimate burden of proving that the employer's proffered reason is not true but instead is a pretext
for the real
. .
.
retaliatory purpose." Id (citation omitted).
In this case, Gonzalez fails to establish that he engaged in any protected activity under Title
VII, or that the materially adverse employment action (i.e., his termination) is causally connected
to his protected activity.
12
Gonzalez's alleged protected activity is without the purview of Title
VII.
As an initial matter, the parties appear to dispute whether Gonzalez engaged in protected
activity within the meaning of Title VII. The anti-retaliation provision of Title VII prohibits
employers from retaliating against their employees for engaging in either of two forms of protected
activity. First, employers cannot retaliate against an employee "because he has opposed any
practice made an unlawful employment practice by [Title VII]." 42 U.S.C.
§
2000e-3(a). Second,
employers cannot retaliate against an employee "because he has made a charge, testified, assisted,
or participated in any manner in an investigation, proceeding, or hearing under [Title VII]." Id.
Accordingly, to establish aprimafacie claim of retaliation under Title VII, a plaintiff must
demonstrate that he engaged in the kind of activity that Title VII itself protects.
See
Aryain, 534
F.3d at 484. Because Gonzalez fails to establish that his allegedly protected conduct falls within
either of the two foregoing categories, he necessarily fails to establish a fundamental element of
his anti-retaliation claim under Title VII.
For his part, Gonzalez appears to advance that he engaged in protected activity when he
"exercise[d]
.
.
.
his right to oppose discriminatory conduct."
Compi., ECF No.
1
¶ 17.
Specifically, he avers that at a meeting that "probably occurred on April 10, 2014," UPS
management officials did not adequately ascertain whether he continued to be qualified for his
position after returning from medical leave. ECF No. 19-1, at 8 ¶ 8. But in none of his submissions
or pleadings does he allege that the management officials failed to accommodate his request
specifically "because
of' his race, color, religion,
or national origin.
UPS responds that Gonzalez's "charge of discrimination, filed May 22, 2014," after his
termination date, "was the first instance in which he complained of discrimination or retaliation in
relationship to his employment with UPS[.]" ECF No. 14, at 7. The Charge of Discrimination,
13
submitted by UPS, minimally supports Gonzalez's claim. Therein, Gonzalez alleges that "[ojn or
about February 21, 2014, [he] requested a reasonable accommodation for [his] disability that
would have allowed [him] to return to work on March 15, 2014." ECF No. 14-26, at 2.
Without specifying a timeframe or supporting evidence, he states further that "[t]wo Anglo
Inside Sales Representatives were given reasonable accommodations for their disabilities and
allowed to return to work." Id He then states he was "discharged" on or about May 1, 2014. Id.
Then, nearly one year later, Gonzalez amended his Charge of Discrimination and removed
all allegations or inferences of racial discrimination. See ECF No. 14-27. Such unexplained
factual inconsistencies, coupled with a dearth of relevant information about the comparators, are
fatal to Gonzalez's Title VII retaliation claim. See RobersOn v. AIltel Info. Servs., 373 F.3d 647,
655 (5th Cir. 2004) ("In order to withstand summary judgment, the plaintiffj mist offer evidence
from which the jury may infer that retaliation, in whole or in part, motivated the adverse
employment action.") (citations omitted). Gonzalez was thus required to provide evidence that he
was treated differently from specific, relevant cOmparators. See Allen v. Envirogreen Landscape
Prof'ls., Inc., 721 Fed. App'x 322, 326 (5th Cir. 2017) (citing Mota v. Univ. of Tex. Hous. Health
Sd.
dr., 261 F.3d 512, 519 (5th Cir. 2001)).2
Gonzalez thus wholly fails to demonstrate that any retaliation "produce[d] an injury or
harm" that is cognizable under Title
VII.
White,
548 U.S. at 67. Indeed, Title VII retaliation
claims require a plaintiff to "show that a reasonable employee" would feel "dissuaded from
making or supporting a charge of discrimination." Id at 68 (citing and adopting Rochon
v.
Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)). To defeat a motion for summary judgment, this
showing requires a plaintiff to produce some evidence to indicate that other similarly situated
2
Although Allen is not "controlling precedent," it "may be [cited as] persuasive authority."
F.3d 39!, 401 n.7 (5th Cir. 2006) (citing 5th Cir. R. 47.5.4).
14
Ballard v. Burton, 444
individuals outside a Title VII protected class engaged in similar conduct, but did not experience
a materially adverse employment action. Accord Lee, 574 F.3d at 261. Gonzalez does not do so
here.
Moreover, a Title VII retaliation claim is only viable if a plaintiff shows that he engaged
in conduct protected by Title VII. See 42 U.S.C.
§
2000e-3(a). Gonzalez argues that the
"protected activity" here was his request for an accommodation, but then cites exclusively to cases
decided under the ADA, not under Title VII. See ECF No. 19-1, at 16-17. Indeed, Gonzalez
incorrectly states,
[An employer's] [fjailure to accommodate is a separate violation [of the ADA] for
obvious reasons. In the typical Title VII case, the employer disputes that race or
ethnic origin played a role [i]n the adverse decision But, in disability cases
involving a failure to accommodate, the employer often does not dispute that it
failed to accommodate.
ECF No. 19-1, at 16 (emphases added) (collecting Title VII cases). Gonzalez's request for a
reasonable accommodation is not protected activity within the meaning of Title VII, because
disability status is not a protected class under Title VII. See 42 U.S.C. § § 2000e-2(a)(1 )-(2) (the
only protected classes under Title VII are: "race, color, religion, sex, or national origin").3 Thus,
even if, arguendo, UPS terminated Gonzalez because he requcsted an accommodation for any
disability, such conduct is not within the purview of Title VII.
ii.
Even if Gonzalez had demonstrated his membership in a protected
class, he has not demonstrated that his membership in that class was
the "but-for" cause of his termination.
Finally, to state a cognizable claim of retaliation in contravention of Title VII, a plaintiff
must establish that "the desire to retaliate was the but-for cause of the challenged employment
The Court also notes that "ethnic origin" is not a protected class under Title VII, as Gonzalez argues. Compare 42
U.S.C. § 2000e-2(a)(l)--(2) ("national origin" is a protected class) with ECF No. 19-I, at 16 (arguing that "typical"
Title VII retaliation cases involve retaliation based on "ethnic origin.").
15
action." Univ. of Tex. Sw. Med. Ctr.
v.
Nassar, 570 U.S. 338, 352 (2013) (citing Gross
v.
FBL
Fin. Servs., Inc., 557 U.S. 167, 176 (2009)) (emphasis added). "This requires proof that the
unlawful retaliation would not have occurred in the absence of the alleged wrongful action or
actions of the employer." Id. at 360.
Even if the Court could accept Gonzalez's bare allegation that "[t]wo Anglo Inside Sales
Representatives were given reasonable accommodations for their disabilities and allowed to return
to work," ECF No. 14-26, the record is entirely devoid of any evidence to suggest that UPS granted
those accommodation requests only because of their race, and for no other reason. See Nassar,
557 U.S. at 352 (concludirig that a "motivating-faótor" analysis applies only to Title VII
discrimination claims, and the more stringent "but-for" analysis applies to Title VII retaliation
claims). Moreover, as discussed, Gonzalez never 'mentions the purported piotected Title VII class
in which he claims membership. And at this stage, "[m]ere conclusory allegations" are insufficient
to defeat a motion for summary judgment. Akene, 2018 WL 1128149, at 2 (citation omitted).
For the foregoing reasons, the Court will GRANT UPS's Motion for Summary Judgment
as to Gonzalez's Title VII discrimination and retaliation claims.
11.
ADA Discrimination & Retaliation Claims
Gonzalez next claims that UPS discriminated against him based on his disability status, in
contravention of the ADA, when it altered the terms and conditions of the parties' employment
relationship. Compi., ECF No. 1, at ¶ 13-14 (citing 42 U.S.C.
§
12101 et seq.). UPS admits
that it terminated Gonzalez's employment on May 1, 2014, but proffers that Gonzalez (1) was not
qualified for his position; (2) that he "could not be reasonably accommodated in any existing
position given his restrictions," (3) and that because "Gonzalez suffered from restrictions of an
16
open-ended and indefinite nature," UPS had a legitimate, non-discriminatory reason for
terminating his employment. ECF No. 14, at 6-9.
The ADA prohibits any employer from "discriminat[ing] against a qualified individual on
the basis of disability in regard to.
. .
discharge of employees,. . . and other terms, conditions, and
privileges of employment." 42 U.S.C. § 12112(a). To establish a claim of ADA discrimination,
a plaintiff must demonstrate that (1) he 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." Patton
v.
Jacobs Eng'g Grp.,
Inc., 874 F.3d 437, 442 (5th Cir. 2017) (quoting Feist v. La. Dep't ofJustice, 730 F.3d 450, 452
(5th Cir. 2013)). Further, a plaintiff must show (4) "that he was subject to an adverse employment
decision on account of his disability.' Zenor
v.
El Paso Healthcare Sys., Ltd., 176 F.3d847, 853
(5th Cir. 1999).
If a plaintiff makes such a showing with only circumstantial evidence, "a presumption of
discrimination arises, and the employer must 'articulate a legitimate non-discriminatory reason for
the adverse employment action." Burton
(5th Cir. 2015) (quoting E.E.O.C.
v.
v.
Freescale Semiconductor, Inc., 798 F.3d 222, 227
Chevron Phillips Chem. Co., LP, 570 F.3d 606, 615 (5th Cir.
2009)). If the employer proffers such a reason, "[t]he burden shifts to the plaintiff to show the
articulated reason is pretextual." Id. (citation omitted).
The Court finds that Gonzalez does not meet his initial burden to establish a prima facie
claim of ADA discrimination because (1) he was not a "qualified individual" at the time of his
discharge and (2) his requested accommodation was not "reasonable" within the meaning of the
ADA. The Court further finds that Gonzalez does not meet his initial burden to establish a prima
facie claim of ADA retaliation because (1) he did not engage in any ADA-protected conduct prior
17
to his termination and therefore (2) cannot establish a causal connection between any alleged
protected conduct and his termination. Accordingly, the Court will GRANT UPS's Motion for
Summary Judgment as to Gonzalez's ADA's discrimination and retaliation claims.
a.
Gonzalez was not a qua!jfIed individual within the meaning of the ADA
at the time ofhis termination.
Only "qualified individuals" have cognizable causes of action under the ADA. See 42
U.S.C. § 12112(a). Such an individual is one "who, with or without reasonable accommodation,
can perform the essential functions of the employment positon that such individual holds or
desires." Id.
§
12111(8). Accordingly, to avoid summary judgment, a plaintiff must establish
either that "(1) [he] could perform the essential functions of the job in spite of [his]
disability"
or, in the alternative, "'(2) that a reasonable accommodation of [hisl disability would have enabled
[him] to perform the essential functions of the job." E.E.O.C.
697 (5th Cir. 2014) (quoting Turco
v.
v.
LHC Grp., Inc., 773 F.3d 688,
Hoechst Celanese Corp., 101 F.3d 1090, 1093 (5th Cir.
1996) (per curiam)).
The question here is not whether Gonzalez was ever qualified for his position, but rather
whether he was qualified at the time of his termination. See, e.g., Moss v. Harris Cly. Constable
Precinct One, 851 F.3d 413, 418 (5th Cir. 2017) (citations omitted). And while the Court draws
all reasonable inferences in Gonzalez's favor at this stage, see Reeves, 530 U.S. at 150, the ADA
requires it to consider "the employer's judgment as to what functions of a job are essential" to
ascertain whether Gonzalez met his burden. 42 U.S.C.
§
12111(8).
And where, as here, an
"employer has prepared a written description before advertising or interviewing applicants for the
job," courts must consider such a writing as "evidence of the essential functions of the job." Id.
Moreover, a job function is deemed "essential" if it bears "more than a marginal relationship" to
18
the employee's job. Chandler v. City of Dali., 2 F.3d 1385, 1393 (5th Cir. 1993), modfIed on
other grounds by Kapache v. City of San Antonio, 304 F.3d 493 (5th Cir. 2002) (per curiam).
Because Gonzalez does not establish that he was a "qualified individual" who could
perform the "essential functions" of his job at the time of his termination, his ADA discrimination
claim cannot survive summary judgment.
i.
Gonzalez could not perform the essential functions of his job, either
with or without a reasonable accommodation.
The parties do not dispute that the ISR and EAR positions at UPS "were quite similar in
their day-to-day essential functions." ECF No. 14-1, at 2 ¶ 2. Indeed, Gonzalez concedes that
"[UPS] is correct that [Gonzalez's formal job title as ISR or EAR] would not otherwise be a
distinction that matters [to the essential job function analysis]." ECF No. 19-1, at 12. He argues,
however, that the distinction is relevant here because "it does il'ustrate the employer's refusal to
draw available inferences in favor of [Gonzalez]." Id. It is not incumbent upon UPS to make
Gonzalez's arguments for him. Gonzalez's pleadings are entirely devoid of any discussion or
evidence of a meaningful difference between the essential job functions of the ISR and EAR roles.
Having conceded that the distinction is not one that matters, Gonzalez thus admits that the
essential job functions detailed in UP S's Factual Background & Procedural History are not in
dispute. See ECF No. 14-1 ¶112-8 (UPS's discussion of the essential job functions). See also ECF
No. 14-5, at 7-8 (a "written description" that the Court must consider as evidence of the "essential
functions of the job." See 42 U.S.C.
§ 12 111(8)).
Gonzalez dces not dispute the authenticity or
veracity of the job functions listed in either of UPS's submissions. Nor does Gonzalez ever dispute
that any of the essential job functions detailed in UPS's submissions bore less than a "marginal
relationship" to his roles as an ISR or EAR. Cf Chandler, 2 F.3d at 1393.
19
Accordingly, at the time of his termination, Gonzalez would have been qualified for his
position only if he could "engage in a host of complex, analytical, cognitive functions related to
sales strategy, planning, and customer service activities," with or without a reasonable
accommodation. ECF No. 14, at 7. See also ECF No. 14-5, at 7. The specific, enumerated job
functions relevant here are the abilities: (1) to "[c]omplete the scheduled workday on a consistent
basis[;]" (2) to "[g}rasp, lift (from floor to shoulder height), lower (from shoulder height to floor),
push, pull, carry and manipulate equipment, packages or parts weighing up to 30 pounds[;}" (3) to
"[p]erform office tasks using simple hand grasping, fine hand manipulation and reach associated
with assigned tasks[;]" and (4) to "[d]emonsfrate cognitive ability to cdncentrate[.]" ECF No. 14-
5,at7.
A. Gonzalez could nbt perform the essential job
functions without an accommodation.
Gonzalez appears to rest his argument on an alleged discrepancy that appears in the UPS
Accommodation Checklist dated Apr. 10, 2014. See ECF Nos. 14-16, 19-5, & 19-6. He submits
that "[i]n one section, the doctor states Mr. Gonzalez cannot work four hours. [In another section
on the same page], [the medical provider] states [Gonzalez] can work four hours. [sic]" ECF No.
19-1, at 7 (emphasis added) (citing [ECF No. 19-6, at 1]).
The Court finds that there is no such inconsistency in the Accommodation Checklist. The
first section asks the medical provider to "describe in detail the degree or extent of the job
restrictions." ECF Nos. 14-16, at 3; 19-5, at 23. In response, the medical provider wrote,
"[Gonzalez] is currently unable to work for 4 hours or greater due to [his] inability to do repetitive
motions." ECF Nos. 14-16, at 4; 19-6 at 1 (emphases added). The second section asks the medical
provider to "describe the activities that the employee can perform within the restriction." Id. In
response, the medical provider wrote, "Would like to consider [returning to work] with
accommodations after 3/15/14, possibly 4 hours a day, no lifting over 5 lbs. if available." Id.
(emphases added). And, in that same document, the medical provider also wrote that Gonzalez
was "unable to do continuous, repetitive movements of [his] upper extremities" and that he had a
"decreased ability to make decisions due to medications prescribed." ECF Nos. 14-16, at 4; 19-5,
at 23.
Taking these statements together and in the proper context, there is no reasonable dispute
that Gonzalez's requested accommodation was twofold: (1) to work no more than 4 hours per day
(2) in a position that did not require him to lift more than five pounds. The medical provider did
not propose an accommodation for Gonzalez's inability to concentrate.4 See Id.
Thus, without a reasonable accommodation, Gonzalez concedes that he was unable (1) to
óomplete his scheduled
'orkday on a consistent basis; (2) to manipulate anything weighing
between 5 and 30 pounds; or (3) demonstrate a cognitive ability to concentrate. See ECF No. 145, at 7. Each of these functions was essential to the position he held at UPS. See Id. Accordingly,
at the time of his termination, Gonzalez was medically incapable of performing his duties at UPS
and therefore was not a "qualified individual" under the ADA, unless some reasonable
accommodation existed that would have enabled him to perform each of these functions. See, e.g.,
Reed v. Petroleum Helicopters, Inc., 218 F.3d 477, 480-81(5th Cir. 2000).
The Court also notes that Gonzalez did not submit the entirety of the medicai provider's report. Compare ECF Nos.
19-5 and 19-6 (Gonzalez's submission, missing the last page and provider's signature) with ECF No. 14-16 (UPS's
submission of the same report). On the last page of that report, submitted by UPS, the medical provider expressly
states that Gonzales suffers from "decreased concentration and ability to make decisions." ECF No. 14-16, at 5. The
medical provider does not propose any accommodation that would ameliorate or mitigate these limitations, which
UPS alleges (and Gonzalez does not deny) are essential to his job functions.
21
B. Gonzalez could not perform the essential job
functions, even with a reasonable accommodation.'
Gonzalez does not demonstrate he could have performe1 all of the essential functions of
his job with a reasonable accommodation. See LHC
Grp.,
773 F.3d at 697. Indeed, the medical
provider's comments establish that a part-time schedule would accommodate Gonzalez's physical
requirements, but are silent as to any reasonable accommodation that would ameliorate his mental
health and other cognitive symptoms, each of which the provider attributed to Gonzalez's required
prescription medication regimen.
See
ECF Nos. 14-16, at 4; 19-5, at 23. This omission is fatal to
Gonzalez's contention that he is a "qualified individual," because one of the essentialjob functions
of Gonzalez's pOsition was to "[d]emonstrate cognitive ability to cOncentrate[.]" ECF No. 14-5,
at7.
Moreover, the medical provider indicated that Gonzalez's accommodation would require
that he lift "no more than
5
[pounds]." ECF Nos. 14-16, at 4; 19-6, at 1. Yet, one of the essential
job functions of his position was to "manipulate equipment, packages or parts weighing up to 30
pounds." ECF No. 14-5, at 7. Accordingly, the reasons underlying UPS's inability to reassign
Gonzalez to a part-time position are irrelevant: he would have been unqualified for any position
that required him to lift more than 5 pounds.
Gonzalez responds that he remained qualified through his termination date, relying on post-
dated medical reports to establish that he was qualified for his positon at the time of his termination.
ECF No. 19-1, at 9-10. Medical reports from August and September 2015, which post-date
Gonzalez's termination by more than one year, are not relevant to the inquiry of whether Gonzalez
was "qualified" for his position at the time of his termination. Cf Moss, 851 F.3d at 418. The
only medical report in evidence that is germane to this inquiry is a document dated Feb. 19, 2014.
See ECF No. 14-12, at 5. Gonzalez represents that this document indicates that he "could work"
22
prior to his termination. ECF No. 19-1, at 14. But in that document, the medical provider indicates
that while Gonzalez's condition was improving, he presented with a "continued decrease [in] range
of motion" and that any estimated ability to return to work would be "on [a] limited basis."
Id.
Gonzalez points to no expert statement, and the court does not find any such document in the
record, that provides an inference that he was able to complete each of his essential job functions
as of May 1, 2014.
Accordingly, because Gonzalez fails to establish that he was a "qualified individual" with
or without a disability at the time of his termination, he fails to establish the first element of a
prima fade claim of disability-based discrimination under the ADA.
b.
f
Even
Gonzalez had been a qual/Ied individual, the requested
accommodation was not reasonable.
Even if Gonzalez were a "qualified individual" within the meaning of the ADA at the time
of his termination, to establish aprimafacie case under the ADA, he must demonstrate that UPS
"failed to make reasonable accommodations for [his disability]." Patton, 874 F.3d at 442 (internal
citation and quotation omitted). Gonzalez misses the mark when he argues that "[t]he failure to
accommodate [a disability] is a violation of the ADA in itself." ECF No. 19-1, at 16. Not so. The
ADA only requires employers to make reasonable accommodations.
See 42 U.S.C.
§
121 12(b)(5)(A).
As relevant here, "reasonable accommodation" includes "job restricting, part-time or
modified work schedules, [or] reassignment to a vacant position[.]" Id.
§
1211 1(9)(B). Critically,
however, "[r]easonable accommodation does not require an employer to wait indefinitely for the
employee's medical conditions to be corrected." Rogers v. Int'l Marine Terminals, Inc., 87 F.3d
755, 760 (5th Cir. 1996) (citations omitted). Gonzalez concedes that UPS had no part-time sales
23
positions available at the time of his termination. See ECF No. 14-2, at 40. Therein, Gonzalez
testified as follows:
Q:
A:
Q:
A:
Q:
A:
Can you name one employee who's worked a permanent part-time ISR
schedule?
I cannot name one employee.
[Do] [y]ou know anybody who's worked a permanent part-time schedule
in an account representative-enterprise account representative position at
UPS?
No, not to my knowledge.
Do you know anybody who worked a permanent part-time schedule in the
franchise sales consultant position?
Not to my knowledge.
Accordingly, Gonzalez's request to work no more than four hours per day was not reasonable per
Se.
Where, as here, an employer would be required to create a new position to accommodate an
employee's disability, the request is not reasonable See Foreman v Babcock & Wilcox Co, 117
F.3d 800, 810 (5th Cir. 1997) ("For the accommodation of a reassignment to be reasonable, it is
clear that a position must first exist and be vacant.").
Moreover, Gonzalez bears the burden at this stage to "prov[e] that an available position
exist[ed] that he was qualified for and could, with reasonable accommodations, perform." Jenkins
v.
Cleco Power, LLC, 487 F.3d 309, 315 (5th Cir. 2007). He wholly fails to meet his burden. In
the Accommodations Checklist dated Apr. 10, 2014, Gonzalez's medical provider offered the
following requests for an accommodation: (1) to work no more than 4 hours per day, (2) without
lifting more than 5 pounds,
"ifavailable." ECF Nos. 14-16, at 4; 19-6, at 1 (emphasis added). But
the essential functions of his job were (1) to work up to 8 hours per day, (2) lifting up to 30 pounds.
See ECF No. 14-5, at 7.
The medical provider also wrote that Gonzalez, even with any accommodation, would be
"unable to do continuous, repetitive movements
of [his] upper extremities" and that he had a
"decreased ability to make decisions due to medications prescribed." ECF Nos. 14-16, at 3; 19-5,
24
at 23. The ability to use his upper extremities to lift packages and to employ his cognition to
"concentrate" were also essential functions of his job. See ECF No. 14-5, at 7. Gonzalez's request,
then, was not one of "accommodation" but of "reallocation." Such requests to reallocate "the
essential functions of an employee's position to other employees is not a reasonable
accommodation." Ladson
v.
US.P.S., 2007 WL 1850422, at *7 (S.D. Tex. Jun. 26, 2007). Such
accommodations are "unreasonable" as a matter of law. Id.
Gonzalez points to no other relevant, probative facts in the record to establish that his
request to reallocate his workload to other UPS employees was reasonable. Accordingly, he fails
to establish that his requested accommodation was reasonable within the meaning of the ADA.
c.
UPS was not required to engcige in the interactive process because the
requested accommodations were unreasonable.
Having established that Gonzalez's requests for accommodation were not reasonable, the
Court turns to his argument that summary judgment is precluded because UPS failed to engage in
the ADA's interactive process. See ECF. No. 19-1, at 20 ("The real problem is that [UPS] did not
engage in an interactive discussion."). Gonzalez cites to an irrelevant, out-of-circuit authority for
the proposition that employers are under an obligation to engage in an interactive process
immediately upon discovery of an employee's disability. Id. at 23 (citing Dep 't ofFair Emp 't &
Hous.
v.
Lucent Techs., Inc., 642 F.3d 728, 742-43 (9th Cir. 20i 1)). This is entirely incorrect.
First, Lucent is a case about the California Fair Employment and Housing Act, a state law
having nothing to do with the Americans with Disabilities Act. Second, the Ninth Circuit found
that the "interactive process" in that state statute, like in the ADA, requires employers to respond
to employees only after they submit a request for a reasonable accommodation. Lucent, 642 F.3d
at 742 (collecting California state cases). The case thus stands for the unremarkable proposition
that an employee must request a reasonable accommodation before an employer's obligation to
25
engage in the interactive process is triggered. See Id. at 742-43. Taking Gonzalez's argument to
its logical conclusion would require the Court to re-write the whole of ADA jurisprudence, to find
that employers have an affirmative duty to scrutinize their employees' physical and mental
abilities, and to offer to engage with any employee whom they believe may have a disability. Such
scrutiny would doubtless be tantamount to discrimination under 42 U.S.C. § 12 112(a).
In any event, that is not the law, and the Court declines Gonzalez's invitation to re-write it.
We are concerned with the Fifth Circuit's interpretation of a federal statute, not with the Ninth
Circuit's interpretation of a state statute. And in the Fifth Circuit, even where a genuine issue of
material fact may exist as to whether an employer engaged in the interactive process, "its
dereliction cannot be said to have led to a failure to reasonably accommodate" an employee where
"there is no evidence that a reasonable accommodation was feasible." Silva
v.
City ofHidalgo,
575 Fed. App'x 419, 424 (5th Cir. 2014) (citation omitted) (emphasis in original).5
In Silva, the Fifth Circuit distinguished Chevron Phillips, explaining that Chevron Phillips
does not 'eradicate [the] causation requirement or relieve a plaintiff of [his] burden of showing
that a vacant position existed which [he] was qualified to perform." Id. at 424 n.3 (citation
omitted). Here, Gonzalez does not dispute that UPS lacked a vacant, part-time position for which
he was qualified; in fact, he admits that no such position existed. See ECF No. 14-2, at 40.
Accordingly, because Gonzalez's request was unreasonable as a matter of law, UPS had
no duty to engage in the interactive process. The Court thus need not, and does not, reach the issue
of whether UPS engaged in the ADA-required interactive process, because Gonzalez entirely fails
to establish that he was a qualified individual with a disability who requested a reasonable
accommodation.
5Although Silva is not "controlling precedent," it "may be [cited as] persuasive authority." Ballard v.
F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5th Cir. R. 47,5.4).
26
Burton, 444
d.
Gonzalez does not establish a prima facie claim of unlawful
retaliation under the ADA.
For similar reasons, Gonzalez fails to establish a prima fade case of unlawful retaliation
in contrivance of the ADA. Under the ADA's anti-retaliation provision, it is unlawful for any
person to "discriminate against any individual because such individual has opposed any act or
practice [prohibited by the ADA] or because such individual made a charge.. . under [the ADA]."
42 U.S.C.
§
12203(a) (emphasis added). To establish aprimafacie claim, a plaintiff must show
that he "(1) engage[d} in an activity protected by the ADA, (2) [the employer took] an adverse
employment action, and (3) a causal connection [exists] between the protected act and the adverse
action." Seaman
v.
CSPH, Inc., 179 F.3d 297, 301 (5th Cir. 1999) (citation omitted).
The causation factor requires the employee to show that "but-for the protected activity, the
adverse employment action would not have occurred." Id. A plaintiff "must reveal a conflict in
substantial evidence on the ultimate issue of retaliation in order to withstand a motion for summary
judgment." Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998) (citing Rhodes v.
Guiberson Oil Tools,
75 F.3d 989, 993 (5th Cir. 1996) (en banc)).
Gonzalez does not point to any specific facts that demonstrate that he engaged in any ADAprotected activity prior to his termination. Gonzalez concedes that the first time he ever challenged
UPS's actions was in his May 22, 2014 EEOC Charge of Discrimination. See ECF No. 14-2, at
60. Such conduct is protected activity under the ADA, but it is irrelevant to the inquiry here
because the activity post-dated Gonzalez's termination date of May 1, 2014.
Even if, arguendo, Gonzalez's February 3, 2014 request for an accommodation could be
construed as ADA-protected activity, he fails to demonstrate that his request was "reasonable" and
thus within the ambit of the ADA. Accord Kaye v. Burlington N. & Santa Fe Ry. Co., 2018 WL
2446594, at *6 (N.D. Tex. May 31, 2018). And because Gonzalez does not advance any argument
27
as to the purported casual connection between his February 3, 2014 request and his termination on
May
1,
2014, he does not meet his burden under Seaman.6 Gonzalez simply fails to adduce any
summary judgment evidence that his February 3,2014 request for an accommodation was the "but-
fof' cause of his termination.
See Rhodes, 75
F.3d at 993.
Accordingly, because Gonzalez fails to establish both (1) that he engaged in any ADAprotected activity prior to his termination and (2) that any such protected activity was the but-for
cause of his subsequent termination, he fails to establish aprimafacie claim of unlawful retaliation
under the ADA.
For the foregoing reasons, the Court GRANTS UPS's Motion for Summary Judgment as
to Gonzalez's ADA discrimination and retaliation claims.
III.
'FMLA Claim
The Court does not address whether Gonzalez establishes a prima facie claim under the
FMLA because he voluntarily withdrew the claim in his Response to UPS's Motion for Summary
Judgment.
See
ECF No. 19-1, at 34 ("Plaintiff withdraws his claim based on the Family Medical
Leave Act. The evidence developed during discovery appears to not support that claim [sic].").
To avoid dismissal of a claim with prejudice after a party moves for summary judgment,
Federal Rule of Civil Procedure 41 (a)(1 )(ii) requires a plaintiff to file "a stipulation of dismissal
signed by all parties who have appeared." Here, Gonzalez wholly failed to comply with this
procedural requirement by submitting a one-sentence statement purporting to withdraw the FMLA
6
The Court notes that the "causal connection" prong of an ADA retaliation claim requires more than a showing of
temporal proximity between the alleged protected activity and the adverse action. While a plaintiff may show temporal
proximity to establish a "causal connection," the Fifth Circuit has held that "a five month lapse is not close enough
without other evidence of retaliation." Feist, 730 F.3d at 454 (citing Raggs v. Miss. Power & Light Co., 278 F.3d 463,
472 (5th Cir. 2002), Such "other evidence" may include, inter alia, "an employment record that does not support
dismissal, or an employer's departure from typical policies and procedures." Id at 454-55 (citing Schroeder v.
Greater New Orleans Fed. Credit Union, 664 F.3d 1015, 1024 (5th Cir. 2011)). Gonzalez advances no arguments,
and points to no other evidence, to establish this causal connection.
28
claim in his Response to UPS's Motion for Summary Judgment. See ECF No. 19-1, at 34.
Accordingly, pursuant to Rule 41(b)(2), the Court DISMISSES Gonzalez's FMLA claims
with prejudice, and therefore DENIES UPS's Motion for Summary Judgment as to Gonzalez's
FMLA claim as moot.
IV.
j!PS's Request for Attorney's Fees
In its Motion for Summary Judgment, UPS argues that it is entitled to recover its attorney's
fees because, in its view, "it is abundantly clear that [Gonzalez] is and was unable to perform his
former position with UPS" and that "[Gonzalez] continued to litigate this matter well beyond when
such evidence and admissions became known and obvious, forcing [UPS] to incur substantial
attorney's fees in defense of these groundless, frivolous, and unreasonable claims." ECF No. 14,
at 17L18.
The Court finds that (1) Gonzalez's claims were not frivolous, unreasonable, groundless,
or without foundation; (2) UPS's request for attorney's fees is statutorily precluded; and (3) UPS's
request for attorney's fees is procedurally defective. Therefore, each party shall bear its own
litigation expenses, in accordance with the American rule.
Accordingly, UPS's request for
attorney's fees is DENIED.
a.
The Christiansburg Garment Doctrine is inapplicable to the whole
Gonzalez 's claims.
of
Absent an explicit statutory provision to the contrary, civil litigants must bear the Costs of
their own attorney's fees in the United States. Alyeska Pipeline Serv. Co.
U.S. 240, 247 (1975).
v.
Wilderness Soc 'y, 421
It is "inappropriate for the Judiciary, without legislative guidance, to
reallocate the burdens of litigation." Id. UPS nonetheless argurs that it is entitled to "reasonable
and necessary attorney's fees," and directs the Court to Christiansburg Garment Co.
434 U.S. 412 (1978) for such a proposition.
v.
E.E.O.C.,
In Christiansburg Garment, the Supreme Court considered "what standard should inform
a district court's discretion in deciding whether to award attorney's fees to a successful defendant
in a Title VII action." Christiansburg Garment, 434 U.S. at 417 (emphasis in original). The case
is thus limited to the Supreme Court's interpretation of the "Attorney's Fee" provision of Title VII.
See 42 U.S.C. § 2000e-5(k) ("In any action or proceeding under [Title VII] the court, in its
discretion, may allow the prevailing party,.. . a reasonable attorney's fee (including expert fees)
as part of the costs.") (emphases added). The Supreme Court held that district courts may, in their
discretion, "award attorney's fees to a prevailing defendant in a Title VII case upon a finding that
the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought
in subjective bad faith." Christiansburg Garment, 434 U.S. at 421. It then offered several words
of caution:
In applying these criteria, it is important that a district court resist the
understandable temptation to engage in post hoc reasoning by concluding that,
because a plaintiff did not ultimately prevail, his action must have been
unreasonable or without foundation. This kind of hindsight logic could discourage
all but the most airtight claims, for seldom can a prospective plaintiff be sure of
ultimate success. No matter how honest one's belief that he has been the victim of
discrimination, no matter how meritorious one's claim may appear at the outset, the
course of litigation is rarely predictable. Decisive facts may not emerge until
discovery or trial. The law may change or clarify in the midst of litigation. Even
when the law or the facts appear questionable or unfavorable at the outset, a party
may have
an entirely reasonable
ground
for bringing suit.
Id. at 421 22. Ultimately, the Christiansburg Garment Court affirmed the District Court's denial
of defendant's request for attorney's fees, concluding that it had "exercised its discretion squarely
within the permissible bounds of [42 U.S.C.
§
2000e-5(k)}." Id at 424.
Here, the Court finds that Gonzalez exercised a statutory right to bring a claim against UPS
under Title VII alleging discrimination and retaliation. At any time, UPS could have mitigated its
own costs and expenses by, inter a/ia, filing a dispositive motion under Rule 12 or offering to
30
settle the matter with Gonzalez. That Gonzalez fails to overcome UPS's motion for summary
judgment 'does not necessarily presuppose that he had no reasonable ground for bringing suit in
the first instance.
Accordingly, the Christiansburg Garment factors are inapplicable to Gonzalez's Title VII
claims.
b.
UPS 's requestfor attorney 'sfees is statutorily precluded
Similarly, UPS is not entitled to attorney's fees under the fee-shifting provision of the
ADA. That provision, like Title Vii's, provides that a court may, in its discretion, award a
prevailing party reasonable attorney's fees. See 42 u.s.c.
§
12205. Because "the almost identical
language" between these two statutes "indicates Congress's intent to enforce them similarly," the
Fifth Circuit has adopted the Christiansburg Garment standard as a guidepost for courts to employ
when exercising their discretion to award prevailing parties reasonable attorney's fees under the
ADA. No Barriers, Inc.
v.
Brinker Chili's Tex., Inc., 262 F.3d 496, 499 (5th Cir. 2001) (citing
Christiansburg Garment, 434 U.S. at 422). Thus, a prevailing defendant is only entitled to
reasonable attorney's fees if, in a court's judgment, the plaintiff's claim was "frivolous,
unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so."
Christiansburg Garment, 434 U.S. at 422.
As with Gonzalez's Title VII claims, the Court finds that Gonzalez exercised a statutory
right to bring a claim under the ADA, when he was a person with a disability who was terminated
from his employment. UPS urges that Gonzalez provided documents to "the [Social Security
AdministratiQnj, and other governmental entities reflecting that he has been wholly unable to
perform any gainful activity for nearly a four-year period" in support of its contention that
Gonzalez never had a meritorious ADA claim. ECF No. 14, at 17. UPS overstates the evidence.
31
Indeed, while the Court finds that Gonzalez was not a "qualified individual" for the full-time
position from which UPS terminated him, this conclusion does not necessarily mean that Gonzalez
was "wholly" unable to perform "any" gainful activity. The record is clear that Gonzalez was able
to perform part-time work, but that UPS was unable, and had no obligation, to offer him a parttime position.
Nor is UPS entitled to attorney's fees under the FMLA. That statute, unlike Title VII and
the ADA, does not contain a fee-shifting provision. While Title VII and the ADA permit courts
to award attorney's fees to "prevailing parties," the FMLA limits such an award to prevailing
plaint ffs only. Compare 42 U.S.C. § 20OOe-5(k) and Id.
the court.
. .
§ 12205
("[U]nder [Title VII or the ADA]
may allow the prevailing party,.. . a reasonable attorney's fee.") with 29 US.C.
261 7(a)(3) ("[I]n addition to an)' judgment awarded to the
plaintfJ" the court
shall
§
"allow a
reasonable attorney's fee, reasonable expert witness fees, and other costs of the action to by paid
by the defendant.") (emphases added).
Two key distinctions exist between the Title VII and ADA provisions and the FMLA
provision. First, the plain language of the former provisions suggests that either party may be
entitled to reasonable attorney's fees in certain circumstances. Accord Chrisianburg Garment,
434 U.S. at 422. The latter, however, contemplates an award only to a successful plaintiff. Second,
while the award of attorney's fees to prevailing parties is discretionary under Title VII and the
ADA, such an award to a prevailing plaintiff is mandatory under the FMLA.
These fundamental differences evince Congress's intent to permit only prevailing plaintiffs
to recover attorney's fees in FMLA litigation. Thus, Federal Rule of Civil Procedure 54(d)( I)
controls whether UPS is entitled to its attorney's fees for defending Gonzalez's FMLA claims.
32
And that Rule provides that where, as here, no federal statute, rule, or court order provides
otherwise, prevailing parties are not entitled to recover attorney's fees.
Accordingly, UPS's request for attorney's fees is barred by statute and by the Rules of
Civil Procedure.
c.
UPS's requestfor attorney 'sfees is procedurally defective.
UPS requests attorney's fees as part of its Motion for Summary Judgment. See ECF No.
14, at 17-18.
This was wholly improper because UPS does not move for sanctions against
Gonzalez's counsel under 28 U.S.C.
himself.
See
§
1927; it only requests attorney's fees from Gonzalez
id.
Federal Rule of Civil Procedure 54(d)(2)(A) expressly provides that any "claim for
attorney's fees and related nontaxable expnses must be made by motion unless the substanti'ie
law requires those fees to be proved at trial as any element of damages." As the defendant, UPS
cannot and does not cite to any provision of Title VII, the ADA, or FMLA that requires this Court
to consider its claim for attorney's fees hefcre the entry of a dispositive judgment, because it is not
the party seeking damages.
Indeed, any such request must "specify the judgment" from which the moving party
believes it is entitled to such fees.
See
Fed. R. Civ. P. 54(d)(2)(B)(ii). Because the Court had not
yet entered a final judgment in this matter, UPS's motion clearly did not comply with this
procedural requirement. UPS may have assumed it would prevail, but such assumptions are
irrelevant and have proven presumptuous. Furthermore, any such request must also "state the
amount sought or provide a fair estimate of it[.]" Id. 54(d)(2)(B)(iii). UPS's request is devoid of
any figure certain, or estimation, of the fees to which it purports to be entitled.
33
For the foregoing reasons, the Court will DENY UPS's request for "reasonable and
necessary attorney's fees" with prejudice.
CONCLUSION
For the foregoing reasons, the Cotut will GRANT UP S's Motion for Summary Judgment
as to Gonzalez's Title VII and ADA claims, DISMISS Gonzalez's FMLA claims with prejudice
pursuant to Fed. R. Civ. P. 41(b)(2), DENY UPS's Motion for Summary Judgment as to
Gonzalez's FMLA claims as moot, and DENY UPS's Request for Attorney's Fees.
A separate order shall issue this date.
SIGNED
this__f September, 2018.
ROYCEC. LAMBERTH
SENIOR UNITED STATES DISTRICT JUDGE
34
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