United States District Court, W.D. Texas, San Antonio Division
C. Lamberth, United States District Judge
Jason Mclntyre challenges his administrative separation from
defendant San Antonio Water System (SAWS) as a discriminatory
violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. §§ 2000e et seq. (Title
VII) and the Americans with Disabilities Act, as amended, 42
U.S.C. §§ 12101 etseq. (ADA). Defendant
has moved for summary judgment. Before the Court is
defendant's motion [ECF No. 24] for summary judgment,
Mclntyre's response [ECF No. 26], and defendant's
reply [ECF No. 27]. For the reasons articulated below, the
Court finds that the motion for summary judgment should be
2004, SAWS hired Mclntyre to work as a Graduate Engineer I.
Graduate engineers were responsible for assisting in the
planning and implementation of engineering projects for SAWS.
SAWS Position Description [ECF No. 24-3] 6. The position
required work in both an office environment and in the field.
Id. Mclntyre performed that position until August
2014. Mclntyre Depo. [ECF No. 24-2] 17. He has not performed
work of any kind since August 2014, nor has he sought any
other work since August 2014. Id.
suffers from various medical conditions, including
Crohn's disease, fibromyalgia, neuropathy, asthma, and
high cholesterol. Mclntyre Depo. 18-19. According to
Mclntyre, his Crohn's disease, fibromyalgia, and
neuropathy kept him from working beginning in August 2014.
Id. Similarly, his doctors have been unable to
assess whether or when he would be able to return to work.
Id. at 22. On August 19, 2014, Mclntyre began a
leave of absence under the Family Medical Leave Act for a
personal, non-occupational illness. Exhibit 3 [24-3].
Mclntyre's doctor certified that Mclntyre complained of
fatigue and muscle pain and was "unable to perform any
job function at this time." Id.
employee of SAWS, Mclntyre was the beneficiary of a
non-occupational illness policy that allows employees up to
six months of unpaid leave. Ex. 4 [ECF No. 24-4]. The policy
• Pertains to any employee who is absent from work, or
unable to perform the essential functions of their job duties
for five (5) or more consecutive calendar days as a result of
a health condition.
Consistent with SAWS Employee Handbook, the maximum amount of
leave you will be granted is six months from the first day
you are unable to perform the essential functions of your
job. The six-month period includes any time taken under the
Family Medical Leave Act (FMLA), which is a maximum of twelve
(12) weeks, and any time you may spend on modified duty, not
to exceed ninety (90) days. If you are unable to perform the
essential functions of your current position at the
expiration of six months and SAWS is unable to provide
reasonable accommodation for you within that position as
defined by the American's with Disabilities Act (ADA),
your employment will be terminated. You may retire if
eligible, or offer your resignation.
Id. According to the policy, therefore, if an
employee is unable to perform the essential functions of
their job position, reasonable accommodations will be made to
allow them to return to work, as required by the ADA.
Id. If no reasonable accommodations can be made, an
employee who is unable to perform the essential functions of
their job will be terminated. Id.
November 6, 2014, Mclntyre was still unable to return to
work. SAWS notified Mclntyre that his FMLA leave, which began
on August 18, 2014, had expired and that continued medical
leave would be classified as non-FMLA leave of absence.
Exhibit 5 [ECF No. 24-5]. Mclntyre did not return to work and
remained on leave. On February 10, 2015, Mclntyre was
approved for long-term disability, effective January 19,
2015, through a Principal Life Insurance Company policy with
SAWS. Exhibit 7 [ECF No. 24-7]. He receives approximately $2,
600 per month. Mclntyre Depo. 23. A condition of long-term
disability is Mclntyre's inability to work. Id.
at 27. Indeed, SAWS was notified of Mclntyre's approval
on February 18. Exhibit 6 [ECF No. 24-6]. On February 23,
2015, Mclntyre remained under doctors' care and had no
estimated date for return to work. Id. On February
24, 2015, after more than six months on leave, SAWS
terminated Mclntyre. Id. In the termination letter,
SAWS stated that Mclntyre's six months of maximum leave
had expired on February 18, 2015, and that Mclntyre's
separation was based on this extended leave of absence.
August 20, 2014-days after he first began his leave of
absence-Mclntyre filed an EEOC charge alleging racial
discrimination and hostile workplace environment.
Specifically, Mclntyre claimed that he was reprimanded and
placed on probation in July 2014 based on false allegations,
that his whereabouts and activities at work were
"closely monitored" and "overly scrutinized by
management. Exhibit 8 [ECF No. 24-8]. On March 31, 2015-after
Mclntyre's termination-the EEOC issued a notice of right
to sue within ninety (90) days. Exhibit 9 [ECF NO. 24-9]
("Your lawsuit must be filed WITHIN 90 DAYS of
your receipt of this notice; or your right to sue based on
this charge will be lost."). On July 6, 2015, Mclntyre
also obtained a notice of right to sue from the Texas
Workforce Commission (TWC), referencing the same EEOC
complaint. The TWC notice stated that Mclntyre has
"SIXTY (60) DAYS FROM THE RECEIPT OF THIS NOTICE TO FILE
THIS CIVIL ACTION." Exhibit 11 [ECF No.
September 8, 2015, Mclntyre filed a state suit alleging
discrimination in violation of the Texas Labor Code. Exhibit
10 [ECF No. 24-10]. Mclntyre only claimed violations of
Chapter 21 of the Texas Labor Code. Id. at p. 3
("In this Petition, Plaintiff is not seeking any remedy
under any federal statute."). Specifically, Mclntyre
claimed that disparate treatment and hostile work environment
were based on race. He also alleged that his termination was
based on his race and disability, claiming defendant was
unable to accommodate plaintiffs illness. Id.
Mclntyre sought lost wages, mental pain and anguish damages,
and reinstatement to his position or to an equivalent
December 16, 2015, the Bexar County District Court dismissed
that case as untimely under Texas law because the suit was
filed 161 days after the EEOC notice and 64 days after the
TWC notice. Exhibit 12 [ECF No. 24-12]. The Bexar District
Court held that it either lacked jurisdiction over
Mclntyre's claims because Mclntyre's filing was
untimely under Tex. Labor Code § 21.254, or-if the
60-day requirement is not jurisdictional prerequisite under
Texas law (as is the case in federal Title VII
cases)-dismissal was appropriate because failure to timely
file resulted in the loss of a claim. Accordingly, the case
was dismissed with prejudice. Id.
later, on January 4, 2016, Mclntyre filed a second EEOC
complaint. Exhibit 13 [ECF No. 24-13]. This second complaint
alleged that Mclntyre's termination was due to a failure
to accommodate, race discrimination, and in retaliation for
his original EEOC complaint, which are violations of either
Title VII or the ADA. Id. The EEOC issued a second
notice of right to sue on January 25, 2016. On April 27,
2016, Mclntyre filed this suit, within the 90-day time limit
for Title VII and ADA suits. As amended, Mclntyre's
complaint includes claims for "unlawful employment
practices, " including terminating Mclntyre for having
complained of racial harassment and failing to accommodate
him because of his disability. Am. Compl. [ECF No. 4] 2.
Mclntyre alleges violations of Title VII for race
discrimination, the ADA for failure to accommodate, and for
retaliation of a protected activity.
SAWS moved for summary judgment, arguing that Mclntyre's
claims should be dismissed with prejudice under the doctrine
ofres judicata, arguing that the claims in this
action were known to Mclntyre at the time he brought his
original case in Bexar County. Therefore, SAWS argues, the
claims here either were or could have been raised in that
action, and Mclntyre should be barred from raising them in a
subsequent action. Alternatively, SAWS argues that summary
judgment is warranted because all claims-except the
retaliation claims-are time barred under the appropriate
statute of limitation. Regarding the retaliation claim, SAWS
argues that SAWS had a legitimate, nondiscriminatory, and
nonretaliatory reason in terminating Mclntyre and that
Mclnytre cannot raise a question of fact as to pretext.
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
favor." Fontenot v. 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. The
lack of proof as to an essential element renders all other
facts immaterial. Id.
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.
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