Fuentes v City of San Antonio Fire Department

Filing 33

MEMORANDUM OPINION. Signed by Judge Royce C. Lamberth. (aej)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

FILED
MAR 0 6
CLERK

2017

.S.DI TRICT CLERK

ROLAND FUENTES, JR.,
Plaintiff,
Civil Case No. 15-cv-10l0 (RCL)

V.

CITY OF SAN ANTONIO FIRE
DEPARTMENT,
Defendant.

MEMORANDUM OPINION
I.

INTRODUCTION

Plaintiff Roland Fuentes, Jr., a Hispanic male, was a firefighter with the San Antonio Fire
Department for almost thirty-five years. He was certified as a paramedic in 1993, serving the City

of Antonio until he was assigned to administrative duty on February 25, 2012. He was transferred
back to his paramedic unit in May 2012, but was again transferred to supply and logistics in June
or August 2012. He retired in May 2014. Fuentes now challenges his assignment to administrative

detail as unlawful violations of Title VII and the Genetic Information Nondiscrimination Act
(GINA). Before the Court is the Fire Department's motion [ECF No. 21] for summary judgment
on those claims. The Court also considers plaintiffs response [ECF No. 24] and defendant's reply
[ECF No. 27]. For the reasons set forth below, the motion for summary judgment will be granted.

II.

BACKGROUND

In 2010, the Fire Department announced the development

of a Wellness Program, designed to

provide early detection of serious medical conditions and encourage better health among its
employees. The program requires all uniformed personnel to undergo a physical by either a
1

physician hired by the department or an outside physician. The program is mandatory, as provided
for in the Collective Bargaining Agreement between the City of San Antonio and the International

Association of Firefighters, Local 624. After Fire Chief Charles Hood issued the General Order
implementing the program on December 14, 2010, the Fire Department scheduled a mandatory
meeting to inform employees that participation in the program was mandatory. In 2011, the Fire
Department began scheduling employees for physical examinations. At the conclusion of the year,

the Department identified all employees who had not completed an examination. This included

over 1,000 employees. In early 2012, a list was compiled of those employees, and the Fire
Department contacted them to schedule "make up" examinations.
Based on the results of the examination, an employee is designated to one of three duty
statuses: Full Duty, Conditional Duty, or Alternate Duty. Aff. Horan 2. The physical examinations

mandated by the Wellness Program include:
1)

2)
3)
4)

5)
6)
See

Obtaining vital signs (temperature, blood pressure, pulse and
oxygen saturation);
Obtaining body composition analysis (body weight, fat
percentage and body mass index);
Obtaining vision, hearing and spirometry assessments;
Blood draw for:
a. CBC,
b. Chem 12 (complete metabolic panel),
c. Lipid panel (cholesterol assessment), and
d. One time screen for Hepatitis C and HIV for
baseline purposes;
Urinalysis; and
Chest X-Ray (every five years)

Statement from Dr. Edwards [ECF No. 21-11]. The program also required a stress

electrocardiogram for members over 40 years old.

See

December 14, 2010 General Order [ECF

No. 2 1-2]. On March 12, 2012, Chief Hood amended the Wellness Program by issuing another

General Order.

See

March 12, 2012 General Order [ECF No. 21-4]. The amendments included
2

requiring a stress electrocardiogram "every third year," and eliminated the qualification that the
stress test only applied to members over 40 years old. Id. However, according to Dr. Edwards,

"[n]one of the tests that are administered to firefighters through the Weliness Program are genetic

tests." ECF No. 21-11.
At the time the Weilness Program was enacted, Fuentes held the rank of engineer and worked
as a paramedic in the emergency services (EMS) division. On July 20, 2011, Fuentes refused to

participate in the program because he objected to "the dissemination of [his] personal medical
History and that of [his] family [as] an invasion of [his] privacy." Exhibit

1

[ECF No. 24-2] p. 43.

Fuentes was included in the list of employees who were ordered to schedule "make up"

examinations in February 2012. Aff. Horan [ECF No. 21-1] 2; Horan E-Mail [ECF No. 21-5];
Horan Depo. [ECF No. 24-3] 32. Fuentes again refused to comply with the Weilness Program

requirements. Id. On February 17, 2012, Chief Horan, who was in charge of personnel services at
the time, ordered Fuentes to be placed on administrative duties. Id. Fuentes filed a complaint with
the Equal Opportunity Employment Commission on April 18, 2012 alleging discrimination under

Title VII and GINA. EEOC Notice, Def.'s Exhibit B-3 [ECF No. 2 1-8].

Fuentes remained on administrative duties until May 2012, when he notified the Fire
Department that he would receive a physical examination by his own doctor. Aff. Horan 2;

see

also Fuentes Depo. [ECF No. 24-2] 31-32. He was briefly transferred back to his paramedic unit.
However, while Fuentes was examined by his personal physician, he refused to provide the actual
test resultsincluding the blood work and
No. 24-2]

3 1-32.

x-raysto the Fire Department.

Fuentes Depo. [ECF

Around June 6, 2012, Fuentes was again placed on administrative detail for

failure to comply with the Wellness Program. See EEOC Amendment [ECF No. 2 1-9] ("On June
6, 2012, I was notified by Captain Joseph Hemann that I was being re-assigned from my Paramedic

3

duties to work in supply and logistics for refusing to provide the Department with the results
from
my recent physical examinations with my private physician."). Fuentes retired in May 2014.
Fuentes filed this suit on November 17, 2015. Compi. [ECF No. 1]. Fuentes claims that
the

Fire Department discriminated against him on the basis of his national origin, in violation of
Title
VII of the Civil Rights Act of 1964, and in retaliation for engaging in protected
activity under
GINA. Fuentes claims that this unlawful discrimination resulted in lost opportunity
to receive

overtime pay. Compl. [ECF No. 1] 3, ¶ 8. He also states that other white employees were
not
similarly assigned to administrative duties when they refused to comply with the
Weliness

Program. Id. at 4.

III.

LEGAL STANDARD

Under Federal Rule of Civil Procedure 56, a court must grant summary judgment "if the
movant shows that there is no genuine dispute as to any material fact and the movant is entitled
to

judgment as a matter of law." Fed. R. Civ. P. 56(a); see Anderson v. Liberty Lobby, Inc., 477
U.s.
242, 247 (1986). The moving party bears the burden of establishing the lack of a
genuine issue of

material fact. Id. "[I]f the movant bears the burden of proof on an issue, either because
he is the

plaintiff or as a defendant he is asserting an affirmative defense, he must establish beyond
peradventure all of the essential elements of the claim or defense to warrant judgment in his

Fontenot

v.

favor."

Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). If the movant does not bear the

burden of proof at trial, he is entitled to summary judgment

if he can point to an absence of

evidence to support an essential element of the nonmoving party's case. See Celotex
Corp.

v.

Catrett, 477 U.S. 317, 323 (1986). Similarly, a movant without the burden of proof at trial may
be
entitled to summary judgment

if sufficient evidence "negates" an essential element. Id.

4

A fact is material if it could affect the outcome of a case. Anderson, 477 U.S. at 247. A dispute
is genuine if the evidence is such that "a reasonable jury could return a verdict for the nonmoving

party." Id. Once the moving party demonstrates a lack of an issue of material fact, the burden
passes to the nonmoving party to produce evidence or raise issues of fact for trial. See Fordoche,
Inc.

v.

Texaco, Inc., 463 F.3d 388, 392 (5th Cir. 2006). To survive summary judgment, a

nonmoving party must present specific facts or evidence that would allow a reasonable factfinder
to find in his favor on a material issue. Anderson, 477 U.S. at 247. However, merely asserting a
factual dispute or conclusory denials of the allegations raised by the moving party is insufficient;

the nonmoving party must come forward with competent evidence. Id. at 249-250. The nonmoving

party may set forth specific facts by submitting affidavits or other evidence that demonstrates the
existence of a genuine issue. Id See also Fed. R. Civ. P. 56(c). Competent evidence of the

nonmoving party is to be believed, and all justifiable inferences are to be drawn in her favor. Id.

IV.

ANALYSIS

The Fire Department argues that it is entitled to summary judgment as a matter of law because

"there is no evidence or insufficient evidence to support each element of each of Plaintiff's claims."
Summ. J. Mot. [ECF No. 21] 1. Alternatively, the Fire Department argues that the evidence "does

establish the Fire Department's legitimate business reason for each action taken with respect to

Plaintiffs employment, and there is no evidence that such reasons are pretextual." Id. The Court
will consider the Title VII claims and the GINA claims separately.

a. Title VII
Title VII cases are conducted under a burden-shifting framework developed in McDonnell

Douglas Corp.

v.

Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In a Title VII case,

5

plaintiffs must first establish a prima facie case of discrimination. Texas
Affairs

v. Burdine,

Dept. of

Community

450 U.S. 248, 252-53 (1981). The burden then shifts to the defendant to

articulate some legitimate, nondiscriminatory reason for the adverse action. Id. The burden then
shifts back to the plaintiff to establish that the legitimate reasons offered were not the true reasons,

but merely pretext for discrimination. Id.
To establish a prima facie claim of discrimination under Title VII, plaintiff must establish that

he (1) is member of protected class, (2) was qualified for position, (3) was subject to adverse

employment action, and (4) was treated less favorably than other similarly situated employees,
who were not members of the protected class, under nearly identical circumstances.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36

L.Ed.2d 668 (1973);

See

Lee v

Kansas City S. Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009).
The Fire Department argues that plaintiff cannot establish two elements oftheprimafacie case
for national origin discrimination under Title VII: (1) adverse personnel action, and (2) that other

similarly situated employees outside the class were treated more favorably under nearly identical
circumstances.
i.

There is evidence that Fuentes was subjected to an adverse
personnel action

Traditionally, adverse employment actions include decisions affecting a significant change in
employment status, such as hiring, firing, granting leave, demoting or failing to promote,
assignment with significantly different responsibilities, or decisions changing benefits or
compensation.

See Burlington Indus.,

Inc.

v.

Ellerth,

118 S.Ct. 2257, 2268 (1998). This includes

demotions or transfers to an objectively worse position, such as one that is less prestigious or less
interesting or provides less room for advancement. Alvarado

6

v.

Texas Rangers, 492 F.3d 605, 613

(5th Cir. 2007). Further, in the retaliation context, an adverse action includes any
action that

"might well have dissuaded a reasonable worker from making or supporting a charge of
discrimination." Burlington N. & Santa Fe Ry. Co.

v.

White, 548 U.S. 53, 126 S.Ct. 2405 (2006);

McCoy v. Shreveport, 492 F.3d 551, 559 (5th Cir. 2007).

The Fire Department argues that there is no evidence that Fuentes was subjected to an
adverse

action. Specifically, the Fire Department claims that while Fuentes was placed on
administrative
duty there is no evidence that this assignment was less interesting, or less prestigious, or
resulted
in a loss of promotional activity. Summ. J. Mot. 8. "Fuentes' own perception that
the assignment
was less prestigious is not sufficient to establish this

elementthere must be some objective

evidence, which there is not." Id. In fact, there is. Fuentes indicates that his assignment
to

administrative detail was an objectively worse position because it resulted in a loss of overtime
pay. Fuentes Depo. [ECF No. 24-2] 34-3 5; Horan Depo. [ECF No. 24-3] 35. In an
attached exhibit,

Fuentes points out that his wages went from $101,919.00 annually to $78,223.82 in 2012
and

$69,729.00 in 2013 as a result of being placed in administrative detail. Pl.'s Exhibits 4-6 [ECF
Nos. 24-5, 24-6, 24-7]. Further, this might well dissuade reasonable firefighters from
making or

supporting charges of discrimination in the workplace. Thus, there is ample evidence raising
an
issue of material fact as to whether Fuentes suffered from an adverse employment
action.
ii. There is no evidence of similarly situated employees outside the

class who were treated more fairly under nearly identical
circumstances.

An employee who proffers a fellow employee as a comparator must demonstrate the
employment actions were taken under nearly identical circumstances. Lee v. Kansas City S. Ry.
Co., 574 F.3d 253, 259 (5th Cir. 2009). The employment actions being compared will be
deemed

to have been taken under nearly identical circumstances when the employees being compared

held

the same job or responsibilities, shared the same supervisor or had their employment status
determined by the same person, and have essentially comparable violation histories. Lee v. Kansas
City S. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009) "[E]mployees who have different
work

responsibilities or who are subjected to adverse employment action for dissimilar violations are

not similarly situated." Id. at 259-60. If the difference between the plaintiff's conduct and that of
the employee being compared accounts for the difference in treatment, then the employees are not

similarly situated. Id.
The Fire Department argues that there is no evidence that similarly situated employees outside
the class were treated more favorably under nearly identical circumstances. Summ. J. Mot.
8. In

his complaint, Fuentes offers a comparison with B.T. McEnery, a white male employee who
was
non-compliant with the Wellness Program but was not placed on administrative duty. Compl. 3-4.
Rather, during the relevant time, McEnery was promoted from Captain to District Chief. Id; see
also

Aff. Horan 3. Fuentes, on the other hand, held the rank of engineer and served as an
EMT

paramedic when he was placed on administrative duties. Horan Depo. [ECF No. 24-3] 33. The
Fire Department argues that McEnery was not a similarly situated employee because
of the

differences in rank. Summ. J. Mot. 8-9. According to the Fire Department McEnery's duties as
District Chief were primarily administrative and Fuentes' were not. Further, according to the Fire

Department, McEnery eventually complied with the General Order, except for a stress

test.1

In

Stress tests are no longer required annually. By the end of 2011, McEnery had completed a
physical but not a stress
test. Horan Aff. 3. He had also filed an EEOC complaint regarding the Weliness Program. A decision
was made to
waive the stress test until the EEOC ruling and the next round of physicals were scheduled. In October
2011, McEnery
was promoted to District Chief. Id When McEnery was required to undergo another physical
in 2013, McEnery
challenged the necessity of the stress test. McEnery Deci., Pl.'s Exhibit 3 [ECF No. 24-4]
p. 4. McEnery inquired
whether he was required to take a stress test and was told it was required. However, when he called to schedule a
test,
the Fire Department did not have a doctor available. Id. He was not placed on administrative duty at the time
because
he had attempted to comply with the requirements but the Fire Department lacked the personnel to perform
the test.
Aff. Horan 3; see also Martinez E-Mail, P1. 's Exhibit 3 [24-41 ("[D]ue to the fact that the Weliness
Doctor recently
resigned, you will not be removed from your operational assignment on Mary 3Id but will instead remain
on
Conditional Duty until further notice.").
1

8

short, the Fire Department argues that McEnery had different work responsibilities and committed

dissimilar violations of the Weilness Program, and those differences account for the disparate
treatment.
The evidence presented shows that the circumstances regarding McEnery and Fuentes were

not nearly identical. According to evidence from both parties, McEnery objected to the program
in March 2011. Aff. Horan 3; Horan Depo. Exhibit 8 [24-3] p. 31. At the time that McEnery

objected to the program, nearly 1,600 employees had still not completed the program. Aff. Horan.
3. Further, McEnery had filed an EEOC complaint, and a decision appeared imminent. Id. Not

wanting to prematurely discipline an employee, particularly while hundreds of employees had yet
to comply with the program, the Fire Department did not place McEnery on administrative duties.
Id. Similarly, the Fire Department did not immediately discipline Fuentes when he sent the July

2011 letter objecting to the program. Id. at 2. Eventually, McEnery agreed to comply with the

Weliness Program. In contrast, Fuentes continued his objection to the Weliness Program well into
2012, nearly a year after his initial objections and after the last of the Fire Department's employees
had been scheduled for exams. Id. Fuentes never complied with the program. Thus, Fuentes has
failed to establish that McEnery committed similar violations of the policy. While Fuentes argues

that McEnery's refusal to complete the stress test is a similar violation, the evidence shows that
McEnery attempted to comply while Fuentes consistently refused to do so.

Fuentes has also presented no evidence that Fuentes' work responsibilities or duties were
similar to McEnery's. As pointed out by the Fire Department, the evidence shows that McEnery's

duties were largelyif not primarilyadministrative in nature.

See Aff.

Horan 3 ("As McEnery's

duties are administrative in nature, he was not placed on administrative duties and no further action
was taken against him pending a final determination from the EEOC."). It is also unclear whether

McEnery worked as a Captain or District Chief within the fire division or EMS division. Horan
testified that there are differences in job duties between fire divisions and EMS divisions. Horan
Depo. 37. Plaintiff has presented no evidence that the job duties

of McEnery and Fuentes were

similar, or that they worked within the same division of the Fire Department, or that they
worked

under the same supervisors.2 The only evidence to which Fuentes can point to establish
similarity
is that both McEnery and Fuentes were employed by the San Antonio Fire Department.
However,

to establish a prima facie case

of discrimination, plaintiff is required to establish that a similarly

situated employee under nearly identical circumstances was treated more favorably. This
requires

more detail than Fuentes has provided. That these two employees shared the same
general
employer is insufficient.
Accordingly, Fuentes and McEnery were not similarly situated or employed under nearly
identical circumstances. While McEnery was undoubtedly treated more favorably than Fuentes,
the differences between

themtheir

different work responsibilities and the dissimilar

circumstances of their violationsseem to account for this disparate treatment. Further, Fuentes
has presented no comparisons to other employees outside the class that were
treated more
favorably. Fuentes can, therefore, point to no evidence to establish an essential element ofprima
facie

Title VII discrimination claims: that a similarly situated employee was treated more favorably

under nearly identical circumstances. Therefore, the Fire Department is entitled to
summary

judgment regarding the Title VII claims.

2

Fuentes did testifj that he worked with McEnery at Fire Station 6 "for a while," but this does not
establish similar
job duties or responsibilities within the Fire Department. Fuentes Depo. [ECF No. 24-2] 39. Further,
there is no
evidence that during this time, whenever it was, that McEnery and Fuentes reported to the same supervisor.

10

iii. There is no issue of material fact

that the Fire Department had a
legitimate, nondiscriminatory reason, and there is no evidence of
pretext.

Even assuming plaintiff could establish a prima facie case of
discrimination, the Fire

Department can pass its burden to articulate a legitimate, nondiscriminatory reason for
its actions
here. As defendant correctly notes, the summary judgment evidence
establishes that the Fire

Department had a legitimate business reason for placing Fuentes on administrative
duty. Summ.
J. Mot. 10. Specifically, the

job requirements of first responders and fire personnel are stressful

and physically demanding, and "a healthy work force is clearly necessary to
allow responders to
perform their jobs in an effective manner." Summ. J. Mot. 10. Indeed the
December 14, 2010

General Order specifically states that the program was "designed to provide
early detection of
serious medical conditions and encourage better health, thereby allowing
[Fire Department]

employees to do their job more safely and effectively." Exhibit A-i [ECF No. 2
1-2]. The series of
tests and examinations allows the Fire Department to diagnose medical
problems that may exist

within its workforce and determine whether those conditions effect an
employee's ability to
perform. By imposing a mandatory, but facially neutral order, the Fire Chief
sought to encourage

a healthier and more efficient fire department.
The Fire Department argues that Fuentes' failure to comply with the
order was insubordinate
and risked the well-being of fellow firefighters and the general public.
Indeed, an employee who

has not passed these tests may be at increased risk for injury if they
are asked to perform

particularly strenuous duties while on a call. Similarly, they may be unable to

perform those duties,

forcing additional strain on other members of the Fire Department. Allowing
Fuentes to continue

on in a normal role when he had not complied with the Weliness
Program could potentially

jeopardize Fuentes, other Fire Department employees, or the general public.
Similarly, Fuentes'

11

multiple refusals constitute

insubordination. Either of these constitute

a legitimate,

nondiscriminatory reason for assigning Fuentes to alternate duty.
Fuentes would then carry the burden of proving by a preponderance of
evidence that these
legitimate reasons were not the true reasons, but were merely pretext.
Burdine, 450 U.S. at 53. To
establish pretext, Fuentes must show that the proffered explanation is
false or unworthy of
credence. Vaughn v. Woodforest Bank, 665 F.3d 632, 637 (5th Cir. 2011)
(quotations omitted). As

evidence of pretext, Fuentes points again to the disparate treatment between

MeEnery and Fuentes.

Resp. 6-7. Specifically, Fuentes points to e-mails between McEnery
and Chief Martinez in which

Martinez states a decision was made to waive the stress test for McEnery.
Resp. 7; Horan Depo.
31. According to the e-mails, McEnery was allowed to stay
on his normal duties because the

weliness doctor conducting the tests had recently resigned. Martinez
E-Mail [ECF No. 24-3] p. 32.
Further, since McEnery had completed all other tests, the stress test was
waived

for McEnery while

an EEOC determination was pending. Id.

These e-mails do not establish pretext. The evidence here offers no
indication that the stated
reasons for putting Fuentes on administrative
dutiesnoncompliance with the Weilness

Programwere false. To the contrary, McEnery's treatment reaffirms that the decisions to
place
employees on administrative duties were entirely linked to compliance
and the safety of Fire

Department employees. McEnery refused to comply with the Wellness
Program in March 2011,

but was not placed on administrative duty because he had filed an
EEOC complaint and because
1,600 employees had still not completed the program. At the
time Fuentes was placed on

administrative duty, February 2012, most employees had been scheduled for
exams, and Fuentes
had not filed his EEOC complaint. Aff. Horan 3. That complaint
was filed in April 2012, and he
was placed back on operational duty after he agreed to comply with the
Weilness Program in May
12

2012. However, when Fuentes was not compliant he was placed
back on administrative duties in

June 2012. Each of these actions were immediately prompted by
compliance or noncompliance

with the program.
Simply put, there is no evidence that the Fire Department's reasoning
was false. And there is

similarly no evidence that Fuentes' national original was in any way a
factor in these decisions.
Fuentes has failed to create a genuine issue of fact regarding either
the falsity of the Fire

Department's stated reason or that discrimination was the actual reason. See St.
v.

Hicks,

Mary's Honor Ctr.

509 U.S. 502, 516-17 (1993). Accordingly, the Fire Department is
entitled to summary

judgment on Fuentes' Title VII claims.

b. GINA
Under GINA, it is unlawful for an employer to request, require,
or purchase genetic
information with respect to an employee or their family, with some
exceptions. 42 U.S.C.
2000ff(b). This includes information regarding the manifestation of a
disease

§

or disorder or genetic

testing, such as analysis of DNA, RNA, chromosomes, proteins or
metabolites that detects
genotypes, mutations or chromosomal changes.

See

42 U.S.C. § 2000ff(4), (7); 29 C.F.R.

§

1635.3 (f)(3), (4). However, genetic tests do not include analysis of
proteins or metabolites that do

not detect genotypes, mutations, or chromosomal changes. Id.
Further, genetic information is not
the same as medical information. See 42 U.S.C.
§

2000ff-9.3

The following tests are not genetic

tests:

"An employer, employment agency, labor organization, or joint
labor-management committee shall not be
considered to be in violation of this chapter based on the use, acquisition, or
disclosure of medical information that is
not genetic information about a manifested disease, disorder, or
pathological condition of an employee or member,
including a manifested disease, disorder, or pathological condition that has
or may have a genetic basis." 42 U.S.C. §
2000ff-9 (emphasis added).

13

An analysis of proteins or metabolites that does not detect
genotypes, mutations, or chromosomal changes;
A medical examination that tests for the presence of a virus that
is not composed of human DNA, RNA, chromosomes, proteins,
or metabolites;
A test for infectious and communicable diseases that may be
transmitted through food handling;
Complete blood counts, cholesterol tests, and liver function
tests;
Tests for the presence of alcohol or illegal drugs, or tests for a
genetic predisposition to alcoholism or drug use.
29 C.F.R.

§

1625.3(0(3), (4).

Also, GINA includes an exception for employer weilness programs. An employer
may request
genetic information

if (1) the employer offers a health or weilness program,

(2) the employee

provides voluntary and written authorization, (3) the employee and licensed
health care
professional receive individually identifiable information concerning the results, (4)
and any
individually identifiable genetic information is only available for purposes of the health or
wellness
program and must not be disclosed to the employer except in the aggregate. 42
U.S.C. § 2000ff1

(b)(2)(A)-(D).
Fuentes claims that the Fire Department violated GINA by requiring Fuentes
to provide

"personal health information without voluntary and written authorizations." Compl.
4. But GINA
only applies to genetic information, not "personal health information," and
there is no evidence

that plaintiff was required to submit to genetic testing or to release family
medical history in
violation of GINA. The December 14, 2010 General Order required each firefighter
to undergo a
medical exam to include a medical history, a physical examination, blood tests,
urinalysis, a vision
test, a hearing test, a lung capacity test, a chest x-ray (every five years), and a stress
test. However,
there is no evidence that any of these

testsincluding the blood testsinvolve an analysis of

human DNA, RNA, chromosomes, proteins, metabolites, genotypes, mutations, or
chromosomal
14

changes. Accordingly, Fuentes has not passed his burden to raise a genuine issue of
material fact

regarding a GINA violation. Accordingly, the Fire Department is entitled to
summary judgment
regarding the GINA claims.
Further, there is no evidence that Fuentes was requiredto release genetic

information or family

medical history. Even assuming Fuentes voluntarily authorized the
collection of genetic
information, there is no evidence of a violation of the weilness program exception,
42 U.S.C.

§

2000ff-i. There is no evidence that Fuentes actually provided any genetic
information or family
medical information. Thus, there is no evidence that any individually identifiable
information was
released to anyone other than the licensed health care professionals or
disclosed in any manner
other than aggregate terms allowed by GINA. Ultimately, because there is no
evidence that any of
the information collected by the program was genetic information, there is
no evidence that GINA
is even implicated here. Accordingly, the Fire Department is
entitled to summary judgment

regarding the GINA claims.
c. Retaliation

Fuentes also claims that his noncompliance with the weilness program
resulted in retaliation
in violation of GINA, 42 U.S.C. 2000ff-6(f). That provision states
that:

No person shall discriminate against any individual because such
individual has opposed any act or practice made unlawful by this
chapter or because such individual made a charge, testified, assisted,
or participated in any manner in an investigation, proceeding or
hearing under this chapter.
42 U.S.C. § 2000ff-6(f). To set out aprimafacie case for retaliation,
a plaintiff must establish that
1) he engaged in a protected activity, 2) an adverse
employment action occurred, and 3) a causal

link between the protected activity and the adverse action. See Ortiz

15

v.

City of San Antonio

Fire

Dept., 806 F.3d 822, 827 (5th Cir. 2015); David v. Fort Bend County, 765
F.3d 480, 489-90 (5th
Cir. 2014). A protected activity includes the opposition of an unlawful
employment practice or

filing a charge or participating in a hearing for the unlawful practice.
Byers

v.

Dallas Morning

News, Inc., 209 F.3d 419, 427 (5th Cir. 2000). However, a vague
complaint that does not reference

a discriminatory practice does not constitute a protected activity. Carter v.
Target Corp., 541 Fed.
Appx. 413, 418 (5th Cir. 2013).

Fuentes argues that he complained of violations of GiNA and was
subsequently assigned
to punitive administrative duty assignments. Resp. 12. However, the
July 20, 2011 letter to Chief

Horan generically objected to the Wellness Program as an invasion of
privacy without reference
to GINA. ECF No. 24-3 p. 43. Fuentes claims that he also engaged in
a protected activity when he

complained of GINA in a July 28, 2011 complaint. Resp. 12. However, the Court
finds no evidence

of a July 28, 2011 complaint or that Fuentes ever specifically referred to a

discriminatory practice

under GINA before he was placed on administrative duty in
February 2012. Further, there is no
evidence that Fuentes was involved in any investigation or hearing
under GINA prior to his
placement on administrative duty in February 2012. Accordingly, Fuentes'
purported July 2011

complaints were not protected activities.4

Fuentes also argues that his April 18, 2012 EEOC complaint
constitutes a protected
activity. But while Fuentes' EEOC complaints did include references to
GINA violations, those

complaints were filed in April 2012, months after Fuentes was placed
on administrative duty.
Therefore, assuming the EEOC complaints are a protected activity, there is
no causal link between

Further, even if these July 2011 complaints were sufficiently detailed,
Fuentes was not placed on administrative
duty until six months later, immediately after he refused to comply
with the Weliness Program. Thus, even if they
were protected activities, there is no causal link between those July
2011 complaints and the February 2012 action.

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the protected activity and the adverse employment action because the
adverse action occurred
before

the protected activity.
Finally, Fuentes argues that his refusal to participate in the Weliness
Program was a

protected activity under GINA. Presumably, this stems from the language quoted
above that "[nb
person shall discriminate against any individual because such individual has
opposed any act or
practice made unlawful by [GINA]

. . .

." 42 U.S.C. § 2000ff-6(f). However, as noted above, there

is no evidence that the Weilness Program included any practice
unlawful under GINA. Therefore,

Fuentes' opposition to the program is not protected, and his
subsequent placement on
administrative duties cannot constitute retaliation.
Accordingly, Fuentes cannot establish aprimafacie case for retaliation under
GiNA.5 The
Fire Department is therefore entitled to summary judgment regarding
the retaliation claims.
V.

CONCLUSION

Fuentes has failed to establish essential elements for his Title VII,
GINA, and retaliation
claims. While he was subject to an adverse employment action, Fuentes
has presented no evidence

that similarly situated employees outside of a protected class were
treated more favorably under
nearly identical circumstances. Similarly, Fuentes presented no evidence
that the Fire Department

lacked a legitimate, nondiscriminatory reason or that its purported
reason was false and merely a
pretext for a discriminatory reason. Thus, the Fire Department is entitled
to summary judgment on
the Title VII claims.

Even assuming that Fuentes could establish a prima facie case, the
Fire Department has established a legitimate
nondiscriminatory reason for its decision to place Fuentes on administrative duty.
Further, as noted above, Fuentes
has failed to present evidence of pretext. Finally, the timing of Fuentes'
placement on administrative duties shows that
the motive of the Fire Department was to ensure compliance with the
Wellness Program. For example, Fuentes was
not placed on administrative duty immediately upon his letter complaining
of the program. Rather, he was placed on
administrative duty after he refused to comply with the make-up scheduling.

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Fuentes also failed to present evidence that the Weilness Program
was unlawful under
GINA. Similarly, there is no evidence that Fuentes was placed on
administrative duties in

retaliation for a protected activity under GINA. Accordingly, the Fire
Department is also entitled
to summary judgment on the GINA and retaliation claims.
Therefore, defendant's motion for

summary judgment will be granted.
A separate order shall issue.

DATE:

Royce C. Lamberth
United States District Judge

311/ji

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