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Weed v. Sidewinder Drilling, Inc.

United States District Court, S.D. Texas, Houston Division

March 29, 2017

JASON WEED, Plaintiff,
v.
SIDEWINDER DRILLING, INC. Defendant.

          OPINION AND ORDER DENYING SUMMARY JUDGMENT

          MELINDA HARMON UNITED STATES DISTRICT JUDGE

         Pending before the Court in the above referenced cause, alleging disability discrimination, retaliation, and failure to accommodate in violation of the Americans With Disabilities Act of 1990 (“ADA”), as amended, 42 U.S.C. § 12101, et seq., is Defendant Sidewinder Drilling, Inc.'s (“Sidewinder's”) motion for summary judgment (instrument #24).

         In his response (#31 at p.11 n.84) to the motion for summary judgment, Plaintiff Jason Weed (“Weed”) states that he is nonsuiting his accommodation claim with prejudice, so the Court dismisses it with prejudice.

         Standard of Review

         Summary judgment under Federal Rule of Civil Procedure 56(c) is appropriate when, viewing the evidence in the light most favorable to the nonmovant, the court determines that “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” A dispute of material fact is “genuine” if the evidence would allow a reasonable jury to find in favor of the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         Where the nonmovant bears the burden of proof at trial, the movant must offer evidence that undermines the nonmovant's claim or point out the absence of evidence supporting essential elements of the nonmovant's claim; the movant may, but does not have to, negate the elements of the nonmovant's case to prevail on summary judgment.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Lujan v. National Wildlife Federation, 497 U.S. 871, 885 (1990); Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998). “A complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323.

         If the movant meets its burden and points out an absence of evidence to prove an essential element of the nonmovant's case on which the nonmovant bears the burden of proof at trial, the nonmovant must then present competent summary judgment evidence to support the essential elements of its claim and to demonstrate that there is a genuine issue of material fact for trial. National Ass'n of Gov't Employees v. City Pub. Serv. Board, 40 F.3d 698, 712 (5th Cir. 1994). “[A] complete failure of proof concerning an essential element of the nonmoving party's case renders all other facts immaterial.” Celotex, 477 U.S. at 323. The nonmovant may not rely merely on allegations, denials in a pleading or unsubstantiated assertions that a fact issue exists, but must set forth specific facts showing the existence of a genuine issue of material fact concerning every element of its cause(s) of action. Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998).

         Conclusory allegations unsupported by evidence will not preclude summary judgment. National Ass'n of Gov't Employees v. City Pub. Serv. Board, 40 F.3d at 713; Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). “‘[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment . . . .'” State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990), quoting Anderson v. Liberty Lobby, Inc.. 477 U.S. 242, 247-48 (1986). “Nor is the ‘mere scintilla of evidence' sufficient; ‘there must be evidence on which the jury could reasonably find for the plaintiff.'” Id., quoting Liberty Lobby, 477 U.S. at 252. The Fifth Circuit requires the nonmovant to submit “‘significant probative evidence.'” Id., quoting In re Municipal Bond Reporting Antitrust Litig., 672 F.2d 436, 440 (5th Cir. 1978), and citing Fischbach & Moore, Inc. v. Cajun Electric Power Co-Op., 799 F.2d 194, 197 (5th Cir. 1986). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Thomas v. Barton Lodge II, Ltd., 174 F.3d 636, 644 (5thCir. 1999), citing Celotex, 477 U.S. at 322, and Liberty Lobby, 477 U.S. at 249-50.

         Allegations in a plaintiff's complaint are not evidence. Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996)(“[P]leadings are not summary judgment evidence.”); Johnston v. City of Houston, Tex., 14 F.3d 1056, 1060 (5th Cir. 1995)(for the party opposing the motion for summary judgment, “only evidence--not argument, not facts in the complaint--will satisfy' the burden.”), citing Solo Serve Corp. v. Westown Assoc., 929 F.2d 160, 164 (5thCir. 1991). The nonmovant must “go beyond the pleadings and by [his] own affidavits, or by depositions, answers to interrogatories and admissions on file, designate specific facts showing that there is a genuine issue of material fact for trial.” Giles v. General Elec. Co., 245 F.3d 474, 493 (5th Cir. 2001), citing Celotex, 477 U.S. at 324.

         The court must consider all evidence and draw all inferences from the factual record in the light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); National Ass'n of Gov't Employees v. City Pub. Serv. Board, 40 F.3d at 712-13. The Court may not make credibility determinations. Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009), citing Turner v. Baylor Richardson Medical Center, 476 F.3d 337, 343 (5th Cir. 2007).

         Complaint's Factual Allegations

         According to his conclusory complaint, Weed, age 31 when this suit was filed on June 13, 2014, began working for Sidewinder in June 2012, initially in Houston building an oil rig, and from August 29, 2012 until February 2013 as a Derrick Hand 2[1] on a rig in Williston, North Dakota. On February 16, 2013, on a bathroom break during his shift, Weed noticed blood in his urine.[2] Weed notified his supervisor, rig manager Steven Hayes (“Hayes”), who purportedly walked away without acknowledging Weed's concern. A safety hand, Joshua Ransonet (“Ransonet”), was called, and he took Weed to the emergency room at Mercy Medical Center in Williston, North Dakota. Weed and the safety hand were told by the doctor that Weed had a large mass on his kidney and should have a CAT scan. The doctor told Weed to call a neurologist on Monday. The safety, who was in communication with Hayes throughout this period, asked the doctor if Weed could return to work. Weed was given permission by the physician to return to the oil rig, provided that Weed be placed on light duty.

         The next day Weed gave Hayes a letter from the doctor stating that Weed was to be restricted to light duty. Weed told Hayes that the doctor had told him that the mass on Weed's kidney could be cancer. Weed was placed on light duty on February 17 and 18, 2013, teaching and supervising another Derrick Hand to do his job. On February 18, 2013 Hayes terminated Weed from working on the rig, allegedly for overflowing the trip tank and spilling fifteen barrels of mud that day when he changed the trip out valves. Weed objects that he did not change any trip out valves because it was not his responsibility when he was on light duty. Instead he was assigned to run the TM80.[3] Even though Sidewinder was aware that Weed was not responsible for the mud spill, Weed claims that Sidewinder terminated him because it was known Weed had cancer or was perceived by Sidewinder to have cancer. Weed went home to Delta, Colorado and underwent a CAT scan, which confirmed that the large mass on his kidney was cancer and that it was likely he would have to undergo surgery. Subsequently he had his kidney removed.

         Weed alleges that Sidewinder discriminated against him on the basis of his disability or perceived disability with malice or reckless indifference by terminating him from his job. Sidewinder also allegedly retaliated against him. Weed asserts that based on information and belief, similarly situated employees at Sidewinder were treated differently, and that Weed suffered damages as a result of Defendant's discriminatory conduct.

         Weed claims that he is a person with a disability as defined by the ADA: one who has the requisite skill, education, experience and other job-related requirements necessary to perform with or without accommodation the essential functions of his job at the time of termination. Weed claims he was disabled or viewed as disabled by Sidewinder. While employed by Sidewinder, Weed was a “qualified individual with a disability, ” was a qualified individual with a record of disability, and/or was regarded by Defendant as a person with a disability under the ADA. Weed claims he was terminated as a direct result of his disability or perceived disability, a physical impairment that limited a major life activity under the statute, and/or perceived disability.

         Sidewinder's Motion for Summary Judgment and Brief (#24 & 25)

         Sidewinder argues that Weed was a “subpar employee” whose incompetence resulted in “two careless and nearly identical mistakes that caused spills of oil-based mud.” #25 at p. 1. It claimed that such a spill could harm the health and safety of employees, risk damage to the rig equipment, and cause environmental contamination. The first spill occurred in November 2012, and Weed was given oral counseling by then rig manager Billy Pitts (“Pitts”). Nevertheless Weed's work allegedly continued to be substandard, and Weed caused a second spill in February 2013. After that spill Sidewinder removed Weed from the rig, the human resources department investigated both spills, and Sidewinder terminated Weed.

         As for Weed's alleged disability, Sidewinder states that Weed's doctor found a cyst on Weed's kidney two days before Weed caused the second spill. Only after Weed was terminated did Weed's doctors determine that the cyst was cancerous. Nobody, including Weed and his doctors, knew that Weed had cancer at the time he was discharged, insists Sidewinder.

         Applicable Law: the ADA

         Title I of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112(a), prohibits discrimination against an employee on the basis of physical or mental disability and requires an employer to make reasonable accommodations necessary to allow an employee with a disability to perform the essential functions of his job unless the accommodation would impose an undue hardship on the employer. When an employee's disability is not open or apparent to the employer, the plaintiff or his health provider bears the burden to identify the disability and its resulting limitations. Taylor v. Principal Fin. Group, 93 F.3d 155, 165 (5th Cir. 1996).

         Section 12112(a) of the ADA provides that no covered entity shall “discriminate” against a qualified individual with a disability because of the disability of such an individual in regard to, inter alia, “the hiring, advancement, or discharge of employees . . . and other terms, conditions, and privileges of employment.” In addition, § 12112(b)(5) states that the term, “discriminate, ” includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability . . . unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operations of the business of such covered entity.” A “qualified individual with a disability” is defined as “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). A disability is “(A) a physical or mental impairment that substantially limits one or more of the major activities of such individual; (B) a record of such impairment; or (C) being regarded as having such an impairment.”[4] See Sutton v. United Airlines, Inc., 527 U.S. 471 (1999) and Toyota Motor Manufacturing v. Williams, 534 U.S. 184 (2002), both of which were subsequently overturned by the ADA Amendments Act of 2008, §2(b)(5), 122 Stat. 3553, 3558 (“ADAAA”). Sutton, holding that an employee is not disabled if his impairment is corrected by a mitigating measure to the point where it does not substantially limit a major life activity (e.g., by insulin given to a diabetic), required a court to take into account the ameliorative effects of mitigating measures in determining whether there was a disability, [5]while Toyota narrowly construed and strictly interpreted the term “disability.”[6]

         To state a claim under subsection A, a plaintiff must allege that she has a physical or mental impairment. § 12102(2)(A); 29 C.F.R. § 1630.2(g). A “physical impairment” is “any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, genitourinary; hemic and lymphatic, skin; and endocrine.” 29 C.F.R. § 1630.2(h)(1).

         Simply having an impairment is insufficient to make one disabled under the statute; a plaintiff must also show that the impairment substantially limits a major life activity. Chevron Phillips, 570 F.3d at 614, citing Toyota Motor, 534 U.S. 184, 195 (2002). The implementing regulations in § 1630.2(I) provides a non-exhaustive list of major life activities, which include “caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and walking.” 29 C.F.R. § 1630.2(I); id. Moreover, “to be substantially limited means to be unable to perform a major life activity that the average person in the general population can perform or to be significantly restricted in the ability to perform it.” Id., citing 29 C.F.R. § 1630.2(j). In deciding whether a person is “substantially limited in a major life activity, the Equal Employment Opportunity Commission (“EEOC”) advised that courts should consider: ‘(I) the nature and severity of the impairment, (ii) the duration or expected duration of the impairment; and (iii) the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.'” Id. at 614-15, citing 29 C.F.R. § 1630.2(j). “[W]hether an individual is disabled under the ADA . . . remains an individualized inquiry.” Id. at 620.

         The ADA was amended by the Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”), which by its express language became effective on January 1, 2009, while the final regulations issued by the EEOC became effective on May 25, 2011. 76 Fed. Reg., 16978, 16999 (2011). “The ADAAA is principally aimed at reversing Supreme Court precedent perceived as improperly narrowing the scope of protection originally intended by drafters of the ADA.” Louis P. DiLorenzo, The Intersection of the FMLA and ADA--As Modified by NDAA, ADAAA and GINA, 860 PLI/Lit 47, 83-84 (June 23, 2011); 29 C.F.R. § 1630.1(c)(4)(“reinstating a broad scope of protection under the ADA”; “the definition of ‘disability' shall be construed broadly in favor of expansive coverage to the maximum extent permitted by the terms of the ADA”). The EEOC emphasized that “the primary object of attention in cases . . . should be whether the covered entities have complied with their obligations and whether discrimination has occurred, not whether the individual meets the definition of disability.” 29 C.F.R. § 1630.1(c)(4).

         The ADAAA directs that “substantially limits” should not be as strictly construed as some courts have required in the past and should not require “extensive analysis.” ADA Amendments Act of 2008, §2(b)(5), 122 Stat. 3553, 3558. The ADAAA has added “major bodily functions” (e.g., the immune system, normal cell growth, [emphasis added by the Court relating to Weed's purported disability] digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions) to the ADA's list of major life activities, including caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, standing, sitting, reaching, lifting, bending, reading, concentrating, thinking, communicating, and working, while defining “physical or mental impairment” as any physiological disorder or condition, cosmetic disfigurement or anatomical loss affecting one or more body systems, as well as mental or psychological disorder. ADA Amendments Act of 2008, Pub. L. No. 110-325, §§ 4, § 3(2)(A) and (B), 122 Stat. 3553, 3555.

         Moreover, while retaining the basic definition of disability under the ADA (“a physical or mental impairment that substantially limits one or more major life activities”), “disability” now includes an impairment that is episodic or in remission if it would substantially limit a major life activity when active; examples include epilepsy, hypertension, asthma, diabetes, major depression, bipolar disorder, schizophrenia, and cancer[7] (emphasis by this Court). ADA Amendments Act of 2008, §§ 4, § 3(4)(D), 122 Stat. 3553, 3555; 29 C.F.R. § 1630(j)(5). An impairment lasting less than six months can be substantially limiting. 29 C.F.R. § 1630.2(j)(1)(ix). An impairment that is in remission but may return in a substantially limiting form is a disability under the ADAAA. 29 C.F.R. § 1630.2(j)(1)(vii). The ADAAA also amended Toyota's definition of “major life activity” as “activities that are of central importance to most people's daily lives, ” instead indicating that the word “major” must “not be interpreted strictly to create a demanding standard for disability.” 29 C.F.R. § 1630.2(i)(2). Under the ADAAA, tasks involving major life activity of manual tasks, such as fine motor coordination, grasping, or pressuring, “need not constitute activities of central importance to most people's lives.” Appendix to Part 1630, Interpretive Guidance on Title I of the Americans With Disabilities Act § 1630.2(I); 76 Fed. Reg. at 17008. To be “substantially limiting” an impairment does not have to prevent or significantly restrict a person from performing a major life activity. Id.

         Mitigating measures (such as medications, medical devices and assistive technology) are ignored when assessing whether an impairment substantially limits a person's major life activities. ADA Amendments Act of 2008, § 4, § 3(4)(E)(1), 122 Stat. 3553, 3556. Moreover, the court may consider the negative effects of a mitigating measure, e.g., effects of medication, in determining whether the individual is substantially limited in a major life activity.

         Furthermore, individuals who are “regarded as disabled, ” but who do not actually have a disability, only need to show that they were subjected to an action prohibited by the statute, and no longer that the disability substantially limited them in a major life activity. Employers need not provide reasonable accommodations to those employees only “regarded as” having a disability. ADA Amendments Act of 2008, Sec. 6 § 501 (1)(h), 122 Stat. 3553, 3558.

         When only indirect or circumstantial evidence is available, a plaintiff alleging a violation of the ADA must meet the burden-shifting framework of McDonnell Douglas.[8] Chevron Phillips, 570 F.3d at 615, citing McInnis v. Alamo Community College Dist., 207 F.3d 276, 279 (5th Cir. 2000).

         In a key decision for the instant disability discrimination action, EEOC v. LHC Group, Inc., 773 F.3d 688, 695-97 (5th Cir. 2014), the Fifth Circuit clarified the elements of a prima facie case required to show the nexus between an employee's disability or perceived disability and his termination. The panel observed that in the past it consistently required a plaintiff to prove that (1) he has a disability (or is perceived as having a disability) and (2) he is qualified for the job he held. Id. at 695, citing Zenor v. El Paso Healthcare System, Ltd., 176 F.3d 847, 853 (5th Cir. 1999). From the Zenor test the case law splits into three separate lines concerning the causal nexus: (1) one line requires the employee to prove that he was subject to an adverse employment decision on account of his disability.” LHC Group, 773 F.3d at 695, citing id. A second line of case law requires the plaintiff to prove that he was “subject to an adverse employment action . . . and . . . he . . . was replaced by a nondisabled person or was treated less favorably than non-disabled employees.” Id., citing Burch v. Coca-Cola Co., 119 F.3d 305, 320 (5th Cir. 1997). The third line requires the plaintiff to prove that he was subject to an adverse employment action because of his disability and he was replaced by or treated less favorably than non-disabled employees. Id., citing E.E.O.C. v. Chevron Phillips Chemical Co., LP, 570 F.3d 606, 615 (5th Cir. 2009), citing McGinness v. Alamo Comm. College Dist., 207 F.3d 276, 279 (5th Cir. 2000).[9]

         The Fifth Circuit panel in LHC Group went on to point out, “‘It is a well-settled Fifth Circuit rule of orderliness that one panel of our court may not overturn another panel's decision, absent an intervening change in the law, such as by statutory amendment, or the Supreme Court, or our en banc court.'” Id., quoting Jacobs v. Nat'l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008). The LHC Group panel then held that the earliest test articulated in Zenor controls (requiring “the employee to show that he was subject to an adverse employment decision on account of his disability”) because it was “first used in the disability-discrimination context in Chiari v. City of League City, 920 F.2d 311, 315 (5th Cir. 1991)(interpreting Rehabilitation Act of 1973, 29 U.S.C.A. § 794(a), the ADA's predecessor). In contrast, the second formulation (that he was replaced by or treated less favorably than non-disabled employees) was first used in the disability-discrimination context in Daigle v. Liberty Life Ins. Co., 70 F.3d 396 (5th Cir. 1995), four years after Chiari. Furthermore, this second line of the Daigle test “was likely imported from McDonnell Douglas--a case focused on discriminatory hiring, not termination, ” and required as part of the prima facie case that after the plaintiff is rejected for the job, he must show that “the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.” 411 U.S. 792, 802 (1973). The LHC Group panel explained, “In the McDonnell Douglas context, where the employer and the applicant have only a handful of interactions before the allegedly discriminatory hiring decision is made, the subsequent history of the open position is highly relevant to a finding of discrimination. By contrast, where termination is at issue, plaintiffs may draw on their employment history to prove a nexus between their protected trait and their termination.” LHC, 773 F.3d at 696. The panel noted that its decision was in accord with those of its sister Circuits, “which have overwhelmingly required plaintiffs to prove their termination was because of their disability rather than provide evidence of disfavored treatment or replacement.” Id. The Fifth Circuit has reiterated the holding of LHC Group a number of times subsequently. See, e.g., Delaval v. PTech Drilling Tubulars, LLC, 824 F.3d 476, 479-80 (5th Cir. 2016); Clark v. Boyd Tunica, Inc. __, Fed. Appx., __ No. 16-60167, 2016 WL 7187380 (5th Cir. Dec. 9, 2016); Rodriguez v. Eli Lilly and Co., 820 F.3d 759, 765 (5th Cir. 2016); Benson v. Tyson Foods, Inc., Civ. A. No. 4:14-cv-00121, 2016 WL 3617803, at *6 (E.D. Tex., July 6, 2016). In sum, the prima facie case approved by the panel for a disability-discrimination-in-termination claim under the ADA arises from the Zencor line of cases, which requires a plaintiff to allege and show (1) he has a disability; (2) he was qualified for the job; and (3) that he was subject to an adverse employment on account of his disability. 773 F.3d at 697. See Zenor, 176 F.3d at 853. Thus there is no necessity for comparators under this test.

         If the plaintiff succeeds, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for its adverse employment action. Id. at 701-02. Once the employer has done so, the presumption of discrimination dissolves, and “the issue becomes discrimination vel non.” Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 142 (2000). The plaintiff must show either that the employer's reason is not true, i.e., is pretextual, or that the defendant's reason while true, is only one reason for its conduct and another motivating factor is the plaintiff's protected characteristic, which under the ADA is his disability or perceived disability. LHC Group, 773 F.3d at 702; Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004).

         As noted, however, there is disagreement and uncertainty whether or not mixed motives are viable under the ADA in light of the Supreme Court's decision in Gross. Clark, 2016 WL 7187380, at *3 n.4 (citing LHC Group, 773 F.3d at 702 (applying mixed-motives alternative without addressing Gross), with, e.g., Lewis v. Humboldt Acquisition Corp., Inc., 681 F.3d 312, 318-21 (6th Cir. 2012)(en banc)(concluding that mixed motives claims are not viable under the ADA in light of Gross). The trier of fact can consider any evidence presented in the prima facie case and any other evidence the plaintiff presents to show that the employer's articulated reason for the adverse employment action was pretextual. Id. “Pretext is established ‘either through evidence of disparate treatment or by showing that the employer's proffered expectation is false or ‘unworthy of credence.'‘” Delaval, 824 F.3d at 480, citing Laxton v. Gap, Inc., 333 F.3d 572, 578 (5th Cir. 2003).[10] “At summary judgment, ‘[e]vidence demonstrating that the employer's explanation is false or unworthy of credence, taken together with the plaintiff's prima facie case, is likely to support an inference of discrimination even without further evidence of the defendant's true motive.'” LHC Group, 773 F.3d at 702.

         A claim of unlawful retaliation under the ADA, as under Title VII, requires a plaintiff to make a prima facie case by showing that (1) he engaged in an activity protected by the ADA, (2) he suffered an adverse employment action, and (3) there is a causal connection between the protected act and the adverse action. Seaman v. CSPH, 179 F.3d 297, 301 (5th Cir. 1999), cited for that proposition in Tabatchnik v. Continental Airlines, 262 Fed.Appx. 674, 676 (5th Cir. Jan. 30, 2008). If the plaintiff succeeds, the employer must present a legitimate, non-discriminatory reason for the retaliatory adverse employment action. Seaman, 179 F.3d at 301. If the employer succeeds, the plaintiff must present sufficient evidence showing that the employer's proffered reason is a pretext for discrimination and that but for the protected activity, the adverse action would not have occurred. Id.

         With regard to retaliation claims, the Fifth Circuit has ruled that under the ADA as amended by the ADAAA, an individual who is “regarded as disabled, ” but who does not actually have a disability, only has to show that the disability substantially limited him in an action prohibited by the statute, and no longer that the disability substantially limited him in a major life activity. Garner v. Chevron Phillips Chemical Co., LP, 834 F.Supp.2d 528, 539 (S.D. Tex. 2011). The employer does not have to provide reasonable accommodations to employees only “regarded as” having a disability.” “A claim of unlawful retaliation under the ADA, as under Title VII, requires a plaintiff to make a prima facie case by showing that (1) he or she engaged in an activity protected by th ADA, (2) he or she suffered an adverse employment action, and (3) there is a causal connection between the protected act and the adverse action.” Id. at 540. If he does so, the employer must provide a legitimate, nondiscriminatory reason for the retaliatory adverse employment action; if he does, “the plaintiff must present sufficient evidence showing that the employer's proffered reason is a pretext for discrimination and the plaintiff must show that but for the protected activity, the adverse action would not have occurred.” Id. “To prevail on a claim of retaliation, “‘[c]lose timing between an employee's protected activity and an adverse action against him may provide the ‘causal connection' required to make out a prima facie case of retaliation.'” Id. at 541, citing Dooley v. Parks and Recreation for Parish of East Baton Rouge, No. 10-31254, 2011 WL 2938080, *3 (5th Cir. July 22, 2011), citing Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997), citing Armstrong v. City of Dallas, 997 F.2d 62, 67 (5th Cir. 1993). “‘[T]he mere fact that some adverse action is taken after an employee engages in some protected activity will not always be enough for a prima facie case.'” Id., citing Roberson v. Alltel Info. Servs., 373 F.3d 647, 655 (5th Cir. 2004)(quoting Swanson, 110 F.3d at 1188 n.3). “However, once the employer offers a legitimate, nondiscriminatory reason that explains both the adverse action and the timing, the plaintiff must offer some evidence from which the jury may infer that retaliation was the real motive.” Id., citing Swanson, 110 F.3d at 1188 n.3, and Roberson v. Alltel Info. Servs., 373 F.3d 647, 656 (5th Cir. 2004)(“Without more than timing allegations, and based on Alltel's legitimate, nondiscriminatory reason in this case, summary judgment in favor of Alltel was proper.”). “‘[T]he mere fact that some adverse action is taken after an employee engages in some protected activity will not always be enough for a prima facie case.'” Id., citing Roberson, 373 F.3d at 655. “‘[O]nce the employer offers a legitimate nondiscriminatory reason that explains both the adverse action and the timing, the plaintiff must offer some evidence from which the jury may infer that retaliation was the real motive.'” Id., citing Roberson, 373 F.3d at 656. For a retaliation claim under the ADA, in contrast to one under Title VII, the plaintiff does not have to show that he suffers from an actual disability, but only that he has “a reasonable good faith belief that the statue has been violated. . . . Where he has a good faith belief . . . that he is perceived as disabled, making a request for a reasonable accommodation under the ADA may constitute engaging in a protected activity.” Garner, 834 F.Supp.2d at 541, citing Tabatchnik, 262 Fed.Appx. at 676 & n.1 (failure to prove a disability does not preclude the plaintiff from pursuing a retaliation claim), and 423 U.S.C. § 12112(b)(5)(A).[11]

         Weed contends that Sidewinder denied Weed's request for a reasonable accommodation at his job and failed to engage in the interactive process in good faith. Subsequent to Weed's complaints of being treated differently, he endured retaliation and adverse employment actions, including termination. In turn, Weed asserts that the discrimination and retaliation caused Weed to suffer severe emotional distress, lost wages, lost raises, lost seniority and retirement benefits, mental anguish, loss of enjoyment of life, and other benefits.

         Sidewinder's Motion for Summary Judgment (#24, 25, 26)

         First, Sidewinder argues that Weed cannot establish a prima facie case of ADA discrimination because (1) he cannot show he was terminated because of his disability; (2) Weed cannot demonstrate that he was replaced by a non-disabled employee, nor that he was treated less favorably than a non-disabled employee[12]; and (3) Sidewinder had a legitimate, non-discriminatory reason to discharge Weed, and Weed has no evidence that this reason is pretext.

         Second, Weed fails to establish a prima facie case of ADA retaliation because (1) Weed did not engage in a protected activity because he did not have a good faith belief that he was disabled or was seen as disabled when he asked for an accommodation; and (2) Sidewinder had a legitimate, non-discriminatory reason to terminate Weed, and Weed has no evidence that the reason was pretext.

         Sidewinder describes Weed's duties as a derrickman: working on the moneky board, pulling drilling pipe, inserting drilling pipe into the elevators, attaching pipe to the traveling block during tripping activities and being responsible for the drilling mud and the tanks, including overseeing mud pumps, shale shakers, gas buster, and trip tanks. #26, Ex. C, Affidavit at ¶3 of Sidewinder People Development Manager, Wendy Mitchell; Ex. B at 13:22-14:3, Dep. of Jeffrey Steven Hayes (“Hayes”), rig manager on Rig 103 in North Dakota and Weed's supervisor in February 2013. Sidewinder maintains that Weed, in his capacity as a derrickman, was responsible for maintaining the oil-based drilling mud, keeping it from overheating, preventing the well from blowing out, and preventing fluid loss that might threaten safety. #26, Ex. B, Hayes Dep., 33:12-34:12. During drilling operations, a flow line connects the mud from the drill to the trip tank, which has a limited capacity. Id. at 23:17-24; 24:16-18. To facilitate drilling, the driller at times must pump a “slug, ” a process called “tripping out.” Id.. 23:10-12.

         Weed explained during his deposition that on a trip out, the derrickman made certain that all of the valves were closed so nothing was running. #26, Ex. A, Weed Dep., 72:19-73:1;108:11-13. One of the valves was the flow line for the mud to return to the shale shakers. #26, Ex. B, Hayes Dep., 18:24-19-4; Ex. A, Weed Dep., 95:14-16. The shakers clean and store the oil-based mud for re-use. #26, Ex. B, Hayes Dep., 24:4-12. If the mud is not diverted to the shakers, the volume of it will be more than the capacity of the trip tank and it will overflow or spill. Id. at 24:13-20. To be certain that the valves are in the proper position, if the foot-long handle is perpendicular to the pipe, the valve is closed; if it is aligned with the pipe, it is open. Id., Ex. A, Weed Dep., 130:16-18, 12-15.

         According to Sidewinder, on Weed's first job in North Dakota in November 2012, he caused a spill when he failed to check the alignment when the valves were not correctly aligned, so the oil-based mud overflowed the trip tank. #26, Ex. B, Hayes Dep., 14:7-20; Ex. A, Weed Dep., 125:7-126:7, 123:20-124:24, 125:7-126:7. Conrad Peterson, a company representative of, and the man who gave drilling orders for, StatOil, [13] the company with which Sidewinder had contracted to drill oil at this site, was present and reported the overflow to Sidewinder. #26, Ex. C, Mitchell Affid., ¶ 8; Ex. A, Weed Dep., 124:7-125:6; Ex. B, Hayes Dep., 10:13-11:5. Billy Pitts, the Sidewinder rig manager on duty, orally counseled Weed about his carelessness. #26, Ex. A, Weed Dep. 125:14-20. Sidewinder contends that Weed conceded that he failed to check the valves and therefore the spill was his fault. #26, Ex. A, Weed Dep., 126:4-7 (“Technically, it's my fault.”).[14]

         According to Sidewinder, three months later, on February 18, 2013, rig manager and Weed's supervisor, Steven Hayes, was on duty and reported that Weed told the driller that he had the valves properly aligned for the oil-based mud to go to the shakers. The valves were not properly aligned, with the result that a volume of the mud overflowed the trip tank and caused a spill. #26, Ex. B, Hayes Dep., 18:21-19:12. Conrad Peterson of Statoil was also present at this spill and reported it to Steven Hayes, who then investigated. Ex. A, Weed Dep. 110:16-11:6; Ex. B, Hayes Dep., 27:10-18, 24:25-25:4. Hayes decided that Weed was responsible for the spill because the spill was in his work area and because Weed was there when Hayes went down to investigate. #26, Ex. B, Hayes Dep., 25:7-13. Hayes asked Weed what happened, and, according to Hayes, Weed admitted, “I didn't have it lined up right, ” although Hayes conceded that Weed did not admit to causing the spill. #26, Ex. B, Hayes Dep., 25:23-26:8, 16:12-15. According to Hayes, however, the misalignment caused the spill, but Hayes also stated that he could not remember if there was anyone there with him when he talked to Weed. Id., 26:12-18. Hayes testified that he then brought up the prior spill, and claims that Weed did not say anything. Id., 26:19-24. Later that day according to an email from Wendy Mitchell, Statoil called Hayes and told Hayes that Weed would no longer be allowed to work on a rig currently under contract to Statoil, although Hayes could not remember it. Id., Ex. B, Hayes Dep., 28:20-29:24. Hayes then “kicked [Weed] off the rig.” Ex. B, 31:7-24. Furthermore Hayes recommended that Sidewinder discharge Weed. Id. at 32: 2-4; #26, Ex. C, Mitchell Affid. at ¶4. Hayes again discussed the first mud spill, and Weed did not deny he was responsible.[15] Ex. A, Weed Dep., Ex. B, Hayes Dep. 32:13-19. Sidewinder paid to fly Weed home to Colorado the next day. Ex. A, Weed Dep., 132:14-20.

         According to Sidewinder, Weed was terminated not only because he caused two spills of oil-based mud in four months, but also because he was an incompetent employee at a time when derrick hands were easy to replace. #26, Ex. B, Hayes Dep., 39:2-16, 36:8-10, 37:1-6. Hayes stated that Weed “just didn't know what he was doing up there.” Id., 13:15-17. Weed allegedly left equipment unrepaired for his relief to fix and had difficulty maintaining his drilling mud and working the monkey board. #26, Ex. B, Hayes Dep., 33:12-21, 34:6-12, 13:5-14. Weed had frequently been counseled by Hayes about the same problems. Id., Hayes Dep., 66:20-67:11, 67:20-68:1.

         Since Weed had been employed by Sidewinder for less than a year, he had not received an annual appraisal before he was removed from Rig 103. After reporting blood in his urine to his supervisor, Weed, accompanied by safety hand Joshua Ransonet, went to the emergency room in North Dakota. After running tests, including a CT scan, on Weed, the doctor informed him that he had a cyst on his kidney. He did not tell Weed that he likely had cancer, but rather said “that there's a potential chance of it being cancer.” Ex. B, Hayes Dep., 37:12-38:1; Ex. A, Weed Dep., 81:4-14. While Sidewinder understood that a cyst on a kidney was common and that a followup to rule out cancer was just a precaution, Sidewinder insists that neither Sidewinder nor Weed knew he had cancer or perceived him as being disabled. Ex. C-3, Ransonet Emails at SIDEWINDER 19, 20[16]; Ex. B, Hayes Dep. 38:7-39:1, Ex. C, Mitchell Affid. at ¶13. Sidewinder maintains that the ultimate decision maker, Wendy Mitchell, did not know that the doctor had told Weed he might have cancer. Ex. C, Mitchell Affid., ¶14. Weed's doctors released him that day to go back to work, full duty, but “restricted to ground work only.” Ex. B, Hayes Dep. 38:7-14; Ex. B-2 and Ex. C-2, Weed's doctor's note. Weed returned to work and gave the doctor's note to Hayes. Id., Hayes Dep. 40:2-11. Sidewinder followed the doctor's instruction and assigned another worker to the monkey board, but Weed continued to be responsible for monitoring the valves to the trip tank and the shakers, Ex. A, Weed Dep., 95:10-16; Hayes Dep., #26, Ex. B, 25:7-11. After the spill and doctor's visit on February 16, 2013, Weed continued working for Sidewinder on February 17 and 18th, as evidenced by the drilling reports. Hayes Dep. #26, Ex. b, 41:-42:6.

         Sidewinder paid to fly Weed home to Colorado on February 19, 2013 to be checked out by his doctor. #26, Ex. A, Weed Dep., 134:12-14; Ex. C, Mitchell Affid. ¶5. The haste raises sufficient questions about how much concern Sidewinder had about the possibility that Weed had cancer. According to Sidewinder, after the second spill and after Weed returned to Colorado, he was diagnosed with cancer. Ex. A, Weed Dep., 134:17-25.

         Wendy Mitchell immediately undertook an investigation to decide if Hayes' recommendation that Weed be terminated was appropriate. Ex. C, Mitchell Affid. at paragraphs 1, 7. She examined the write-up on the second spill and communications from Hayes that StatOil did not want Weed working on its wells. Hayes is the only person to assert that Statoil did not want Weed on its rig. Weed conceded that he was involved in the first mud spill and, regarding the second, according to Mitchell, Weed said that if he had paid more attention to the trip tank, it would not have overflowed. Ex. C, Mitchell Affid., ¶¶ 8, 10. Mitchell then purportedly talked to Stephanie Schultz, Sidewinder's Human Resources Manager, and Travis Fitts, Sidewinder's Senior Vice President and Chief Administrative Officer of Operations, but the content of their conversations is not discussed. Id., at ¶11. The Court notes that during Mitchell's “investigation, ” which began immediately after the February 18, 2012 spill, and nearly three months before Weed would have been employed for a year by Sidewinder, Mitchell asked Hayes to fill out a “Sidewinder Annual Appraisal Field Based Non-Supervisors.” The form for the appraisal was printed off by Hayes, who testified it in turn was filled out by Weed's immediate supervisor, Charles Johnson, was dated February 19, 2013 (#26, Ex. C-1 At ¶¶ 4-7 and Ex. C-1). The signature on it is illegible. Hayes was asked at his deposition whether he agreed with the low scores on the appraisal and whether Weed was a “subpar” employee; Hayes answered yes. #26, Ex. B, Hayes Dep., 35:1-36:10. Mitchell discharged Weed on February 27, 2013.

         Sidewinder argues that Weed's ADA claim fails as a matter of law because Weed cannot prove a prima facie discrimination claim under the statute and because Sidewinder had a legitimate, nondiscriminatory reason to terminate him. Weed cannot prove the third element of a prima facie case of discrimination, that Sidewinder discharged him “because” of his disability, because no one, including Weed, knew of his disability or regarded him as disabled at the time of his termination. Nor can Weed show that he was replaced by a non-disabled employee or treated less favorably than non-disabled employees under nearly the same circumstances (e.g., held the same job or responsibilities, shared the same supervisor, had employment status determined by the same person, and have comparable violation histories). Turner v. Kansas City Southern Railway Co., 675 F.3d 887, 893 (5th Cir. 2012). The Fifth Circuit construes “very narrowly” the requirement that comparators be “similarly situated” as a “stringent standard.” Montemayor v. Trump Healthcare, No. H-11-2436, 2013 WL3229716, at *3 (S.D. Tex. June 25, 2013).

         Sidewinder observes that Weed names Charles Johnson (“Johnson”) and Shaun Coleman (“Coleman”) as comparators, but emphasizes that Weed provides no evidence whether they are disabled. Weed claims that Johnson is a comparator because on the same day that Weed allegedly caused his second mud spill, Johnson bent 90 feet of pipe, but was not terminated. These are not comparable violation histories and they are not “similarly situated” employees, Sidewinder argues. See, e.g., Player v. Kansas City Southern Ry., 496 Fed.Appx. 479, 482 (5th Cir. Nov. 16, 2012)(comparing Player and two purported comparators). Johnson and Weed are not comparators because they did not have similar job duties, [17] because bending pipe, which may have financial costs, is not similar to spilling oil-based mud, which creates safety and environmental hazards, and because Johnson was a competent employee and Weed was not. Johnson was a driller and was Weed's immediate supervisor on February 18, 2013, when Weed was a derrickman, a position below in seniority to a driller.[18]

         Nor was Coleman “similarly situated” to Weed, insists Sidewinder. Coleman allegedly spilled oil-based mud in April 2013 and was not terminated, but he also failed to satisfy any of the Fifth Circuit's three requirements for a similarly situated employee. First his job was lower level than Weed's. When Weed's April spill occurred, Coleman was a Floorhand, an entry-level position with fewer responsibilities than a derrickman, who has more knowledge and experience than a Floorhand. Ex. B, Hayes Dep., 45:21-25, 46:5-13; Ex. A, Weed Dep. 20:17-23. Their duties are quite different: a derrickman's duties include assisting the driller in drilling operations, working the monkey board, managing the mud system and equipment, and monitoring and repairing the monkey board and mud pumping system. Ex. C, Mitchell Affid. at ¶17. In contrast, a Floorhand is a general helper on the rig whose duties include working on the rig floor during tripping operations, performing maintenance and repairs on rig equipment as directed by the Driller, operating pipe handling equipment on the drilling location, and maintaining good housekeeping on the drilling site. Id. at ¶18. Second, on the date Coleman purportedly caused a mud spill, the rig manager was Justin C. McKowan. Ex. B, Hayes Dep., 46:14-47, 77:15-21. At the time of Weed's February 18, 2013 spill, which led to his removal from the drilling rig, Steven Hayes was the rig manager. “Comparators with different supervisors . . . generally will not be deemed similarly situated.” Anderson v. Harrison County, 639 Fed.Appx. 1010, 1014-15 (5th Cir. Feb. 12, 2016). Third, regarding the fourth element of a prima facie case, that Coleman was an extremely proficient employee, unlike Weed, accounts for their different treatments by Sidewinder. Ex. C, Mitchell Affid. ¶15.

         Furthermore Sidewinder had a legitimate, nondiscriminatory reason for terminating Weed, i.e., poor performance. Terminating an employee for what management believes is unsatisfactory performance is legitimate and nondiscriminatory as a matter of law. E.E.O.C. v. LHC Group, Inc., 773 F.3d 688, 701-02 (5th Cir. 2014). Sidewinder maintains that it terminated a poorly performing employee who only later happened to be diagnosed as having cancer. Sidewinder contends that Weed has not produced any evidence of pretext.

         As for a retaliation claim under the ADA, to make a prima facie case the plaintiff must prove that (1) he participated in an activity protected under the statute, (2) his employer took an adverse employment action against him, and (3) a causal connection exists between the protected activity and the adverse action. Feist v. State of La., Dep't of Justice, Office of the Attorney General, 730 F.3d, 730 F.3d 450, 454 (5th Cir. 2013). Sidewinder asserts that requesting accommodations under the ADA may constitute a protected activity if the plaintiff has a good faith belief that he was disabled or perceived as disabled when the request was made. See Tabatchnik, 262 Fed.Appx. at 676-77 (upholding a summary judgment in an ADA retaliation claim: “Because Tabatchnik has not shown that he had a good faith belief that he was disabled or perceived as disabled, his request cannot be considered protected by the ADA.”). Sidewinder argues that Weed's retaliation claim fails because at the time he requested an ...


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