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Waugh v. International Sos Assistance, Inc.

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

June 20, 2017

MICHAEL J. WAUGH, Plaintiff,
v.
INTERNATIONAL SOS ASSISTANCE, INC., Defendant.

          MEMORANDUM OPINION AND ORDER

          KENNETH M. HOYT, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Before the Court are the defendant's, International SOS Assistance, Inc., (“International”) motion for summary judgment [DE# 17], and the plaintiff's, Michael J. Waugh, response to the defendant's motion [DE# 32] and the defendant's reply [DE# 33]. The Court has reviewed the motion, response, reply and the pleadings and determines that the motion is meritorious and should be granted.

         II. FACTUAL BACKGROUND

         The plaintiff began his employment with International on November 12, 2012, as Regional Security Manager. Approximately 60 days later the plaintiff allegedly suffered a fall which he claims caused a dislocated shoulder and a head injury. As a result of his injuries the plaintiff underwent surgery on his shoulder. The plaintiff also claims that after his surgery, he began to suffer “cognitive changes” that resulted in his inability to readily call people that he knew by their correct names. He also claims that he suffers “vertical diplopia” when attempting to read, imbalance in his gait and, from time-to-time, suffers “blackout episodes.”

         The plaintiff was diagnosed to have suffered a traumatic brain injury for which he sought appropriate medical attention. Nevertheless, the plaintiff claims he performed his duties successfully and received “many accolades for his performance.” In September 2013, the plaintiff's direct supervisor changed. The plaintiff asserts that shortly after his new supervisor was in place, he informed his supervisor about his physical condition. He also informed his supervisor that on occasion he required more time to complete his expense reports. At the time, the plaintiff was working from his home in Austin, Texas and would travel to Houston, Texas on an “as needed” basis. These travels gave rise to the plaintiff's expense reports that became a point of contention. Shortly, the plaintiff's new supervisor began denying the plaintiff's expense reports based on the terms of his employment. Upon his employment, the plaintiff agreed that Houston was his duty station.

         On December 13, 2013, the plaintiff was terminated shortly after he allegedly sought treatment for his alleged brain injury. The plaintiff contends that he was never counseled regarding any deficient performances; nor was he ever reprimanded. In fact, no disciplinary action was taken against him prior to his termination. In this respect, the plaintiff contends that International failed to follow its progressive policy before terminating him. Finally, the plaintiff asserts that he was never instructed about family leave or an accommodation for his disability, or his rights under federal statutes concerning his disability. Therefore, he concludes that it was his age, his request for medical leave and his disability that gave rise to his termination.

         IV.CONTENTIONS OF THE PARTIES

         International contends, by its motion for summary judgment, that the plaintiff has failed to meet his summary judgment evidentiary burden and as a result cannot defeat International's decision to terminate him. In this regard, International asserts that: (a) the plaintiff has failed to offer competent summary judgment evidence that he even advised International of a medical condition entitling him to FMLA leave; (b) the plaintiff has failed to offer competent summary judgment evidence that his age played a role in his termination; and, (c) the plaintiff has failed to establish that he suffered a disability for which an accommodation under the ADAAA was appropriate.

         The plaintiff contends that he suffered a traumatic brain injury due to a fall in 2013. He experienced serious symptoms that required long-term treatment. As a result, he sought and received time off for treatment even though no one inquired into his condition. At all times, however, the plaintiff was working from his home in Austin, Texas and reported to Houston when necessary. As a result of International's failure to make inquiry into his condition, the plaintiff contends that International failed to learn that he had a disability, that he was entitled to leave under the FMLA and that he should have received an accommodation under the ADAAA due to his disability. Finally, the plaintiff asserts that he was replaced by a “significantly younger individual” in violation of the ADEA.

         V. LEGAL STANDARDS

         A. Summary Judgment Standard

         Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. A fact is “material” if its resolution in favor of one party might affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. An issue is “genuine” if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party. Id. If the evidence rebutting the motion for summary judgment is only colorable or not significantly probative, summary judgment should be granted. Id. at 249-50; see also Shields v. Twiss, 389 F.3d 142, 149-50 (5th Cir. 2004).

         Under Rule 56(c) of the Federal Rules of Civil Procedure, the moving party bears the initial burden of “informing the district court of the basis for its motion and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue for trial.” Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 - 87 (1986); Adams v. Travelers Indem. Co. of Connecticut,465 F.3d 156, 163 (5th Cir. 2006). Where the moving party has met its Rule 56(c) burden, the nonmovant must come forward with “specific facts showing that there is a genuine issue for trial.” Matsushita, 475 U.S. at 586-87 (quoting Fed.R.Civ.P. 56(e)) (emphasis in original); Celotex Corp. v. Catrett, 477 U.S. 317 (1986); and Adams, 465 F.3d at 164. To sustain the burden, the nonmoving party must produce evidence admissible at trial showing that reasonable minds could differ regarding a genuine issue of material fact. Anderson, 477 U.S. at 250-51; 255; Morris ...


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