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Malagon v. Crescent Hotels and Resorts

United States District Court, N.D. Texas, Dallas Division

June 12, 2017




         In this 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., [1] 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.


         In 2012 Crescent took over operation of the Adolphus Hotel in Dallas, where Malagon worked as a valet parking supervisor.[2] 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.

         Malagon 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.

         Malagon 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. 92.[3] 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.

         Malagon 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.

         Both 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.[4] Crescent also moves to strike two of Malagon's expert witnesses, contending that the expert reports do not comply with Fed.R.Civ.P. 26(a)(2)(B).


         When a 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.

         To be 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.)).


         The 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 disability.


         Under the ADA

[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 accommodation.”

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. § 12111(9)(B).

         The ADA 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).[5] 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.”).

         Malagon 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.[6] 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.



         The 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.

         Crescent 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.[7]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.


         Crescent also maintains that it is entitled to summary judgment because Malagon requested a reassignment to another position, and he cannot meet his burden ...

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