United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
A. FITZWATER UNITED STATES DISTRICT JUDGE
action by pro se plaintiff Jose Mauricio Malagon
(“Malagon”) alleging claims under the Americans
with Disabilities Act (“ADA”), 42 U.S.C. §
12101 et seq., and Title VII of the Civil Rights Act
of 1964 (“Title VII”), 42 U.S.C. § 2000e
et seq.,  Malagon and defendant Crescent Hotel and
Resorts (“Crescent”) cross-move for summary
judgment, and Crescent moves to strike Malagon's motion
as untimely, moves to strike his summary judgment evidence,
and moves to strike two of Malagon's experts. For the
reasons that follow, the court grants in part and denies in
part Crescent's motion for summary judgment, denies
Malagon's motion for summary judgment, denies without
prejudice as premature Crescent's motion to strike expert
witnesses, and denies as moot Crescent's motions to
strike Malagon's summary judgment motion and evidence.
Crescent took over operation of the Adolphus Hotel in Dallas,
where Malagon worked as a valet parking
supervisor. Malagon reported directly to Scott Fulce
(“Fulce”), the Adolphus parking garage manager.
As valet parking supervisor, Malagon had various
responsibilities, including serving as the key contact person
and supervisor of valet drivers. In April 2012 Malagon
requested that Fulce give him Sundays and Mondays off because
the evenings were typically were slow and yielded fewer tips.
Fulce granted the request, and Malagon was assigned to shifts
later in the week, including Friday and Saturday evenings,
which were the busiest times.
alleges that Fulce caused him to suffer from anxiety and
depression. Malagon testified at his deposition that he
requested accommodations for his conditions when, on February
26, 2014, he gave a letter to Fulce signed by Dr. Erika
Navarro (“Dr. Navarro”) detailing necessary
accommodations. Dr. Navarro stated that Malagon
“suffers from an anxiety disorder that is exacerbated
by work-related stress.” D. App. 91. She recommended
that he “be switched to Monday through Thursday shifts,
which are less stressful.” Id. Crescent
disputes receiving Dr. Navarro's letter.
resigned as valet parking supervisor effective April 11,
2014, writing that he “was advised by [his] doctor to
decrease [his] work activities immediately[.]” D. App.
Malagon then filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”),
alleging retaliation and disability discrimination under the
ADA. The EEOC denied his charge, concluding that it was
unable to find that Crescent violated the ADA.
then filed the instant suit challenging the EEOC's
decision and alleging discrimination and retaliation claims
against Crescent under the ADA and Title VII. Malagon amended
his complaint to add a harassment claim under Title VII,
appearing to allege the use of racial slurs.
sides now move for summary judgment. Malagon filed his motion
after the deadline set in the scheduling order. Crescent
moves to strike Malagon's motion as untimely and moves to
strike his summary judgment evidence. Crescent also moves to
strike two of Malagon's expert witnesses, contending that
the expert reports do not comply with Fed.R.Civ.P.
summary judgment movant will not have the burden of proof on
a claim at trial, it can obtain summary judgment by pointing
the court to the absence of evidence on any essential element
of the nonmovant's claim. See Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986). Once it does so, the
nonmovant must go beyond his pleadings and designate specific
facts demonstrating that there is a genuine issue for trial.
See Id. at 324; Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). An
issue is genuine if the evidence is such that a reasonable
jury could return a verdict for the nonmovant. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
nonmovant's failure to produce proof as to any essential
element renders all other facts immaterial. See TruGreen
Landcare, L.L.C. v. Scott, 512 F.Supp.2d 613, 623 (N.D.
Tex. 2007) (Fitzwater, J.). Summary judgment is mandatory
where the nonmovant fails to meet this burden.
Little, 37 F.3d at 1076.
entitled to summary judgment on a claim or defense for which
it will have the burden of proof at trial, a party
“must establish ‘beyond peradventure all of the
essential elements of the claim or defense.'”
Bank One, Tex., N.A. v. Prudential Ins. Co. of Am.,
878 F.Supp. 943, 962 (N.D. Tex. 1995) (Fitzwater, J.)
(quoting Fontenot v. Upjohn Co., 780 F.2d 1190, 1194
(5th Cir. 1986)). This means that the moving party must
demonstrate that there are no genuine and material fact
disputes and that it is entitled to summary judgment as a
matter of law. See Martin v. Alamo Cmty. Coll.
Dist., 353 F.3d 409, 412 (5th Cir. 2003). “The
court has noted that the ‘beyond peradventure'
standard is ‘heavy.'” Carolina Cas. Ins.
Co. v. Sowell, 603 F.Supp.2d 914, 923-24 (N.D. Tex.
2009) (Fitzwater, C.J.) (quoting Cont'l Cas.
Co. v. St. Paul Fire & Marine Ins. Co., 2007 WL
2403656, at *10 (N.D. Tex. Aug. 23, 2007) (Fitzwater, J.)).
court will first consider both parties' summary judgment
motions as they relate to Malagon's claim that Crescent
violated the ADA by failing to reasonably accommodate his
[a] prima facie case [for failure to accommodate] requires
that the plaintiff show “(1) the employer is covered by
the statute; (2) [he] is an individual with a disability; (3)
[he] can perform the essential functions of the job with or
without reasonable accommodation; and (4) the employer had
notice of the disability and failed to provide
Bennett v. Dall. Indep. Sch. Dist., 936 F.Supp.2d
767 (N.D. Tex. 2013) (Fitzwater, C.J.) (quoting Mzyk v.
Ne. Indep. Sch. Dist., 397 Fed.Appx. 13, 15 n.3 (5th
Cir. 2010) (per curiam)). Possible reasonable accommodations
under the ADA include “job restructuring, part-time or
modified work schedules, reassignment to a vacant position,
acquisition or modification of equipment or devices,
appropriate adjustment or modifications of examinations,
training materials or policies, the provision of qualified
readers or interpreters, and other similar accommodations for
individuals with disabilities.” 42 U.S.C. §
does not require an employer to make an accommodation that
would impose an undue hardship on the operation of its
business. Id. at § 12112(b)(5)(A). Undue
hardship is an affirmative defense. An employer bears the
burden of showing that a requested reasonable accommodation
would impose an undue hardship by pointing to the existence
of various factors the court considers under §
12111(10)(B). Riel v. Elec. Data Sys. Corp., 99
F.3d, 678, 682 (5th Cir. 1996) (“Ultimately, the
employer bears the burden of proof for [undue hardship]
because [it is an] affirmative defense under the language
of the statute.”).
contends that he requested a schedule change from high-volume
weekend shifts to low-volume weekday shifts as an
accommodation for his disabilities. Crescent concedes that a
fact issue exists as to whether Crescent had sufficient
notice of his disability, but it maintains that notice is
immaterial because the request to change shifts was not a
reasonable accommodation. Crescent contends that the request
posed an undue hardship because Crescent's business needs
required that Malagon be present during high volumes of
business. It also posits that the request was unreasonable
because Crescent did not have a position open for a weekday
supervisor, and the change would have exempted Malagon from
an essential function of his job. Crescent therefore contends
that it had no obligation to fulfill Malagon's request
because the request was unreasonable. Crescent does not argue
for summary judgment on Malagon's reasonable
accommodation claim on any other ground.
court considers first whether Crescent has met its burden of
establishing beyond peradventure that changing Malagon's
schedule would have imposed an undue hardship considering
Crescent's business needs. Crescent contends that
Malagon's request to work less busy nights rather than
weekend nights “would [have] adversely impact[ed] the
operations of the hotel during peak times when it is most
essential that a valet supervisor be present.” D. Br.
12. Crescent cites Fulce's declaration in which he avers
that “Malagon's request for a schedule change would
impose an undue hardship on the operation of the business due
to the inherent nature of his role as a supervisor. Malagon
was required to be present during high demand times to
monitor garage traffic and supervise valet drivers.” D.
App. 101. This conclusory statement does not provide the
information that the court must consider when considering the
§ 12111(10)(B) factors.
also cites an excerpt from Malagon's deposition and
asserts that he “testified the essential functions of
his job as a valet supervisor included the need to be present
during weekends and high demand times, which were critical
for the business operations of the hotel.” D. Br. 16.
The court disagrees with this characterization of
Malagon's testimony.At most, Malagon testified that he
could be working during high-demand times, and, if
he did, one of his duties as a valet parking supervisor was
to monitor the flow during these high-demand times. D. App.
61. He did not testify that “the essential functions of
his job as a valet supervisor included the need to be present
during weekends and high demand times.” Crescent points
to no other evidence that, considered alone or in combination
with the evidence already discussed, establishes beyond
peradventure that granting Malagon's request to change
his work schedule would have imposed an undue hardship on the
operation of Crescent's business.
also maintains that it is entitled to summary judgment
because Malagon requested a reassignment to another position,
and he cannot meet his burden ...