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Barnard v. L-3 Communications Integrated Systems L.P.

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

August 30, 2017

WENDY BARNARD, Plaintiff,
v.
L-3 COMMUNICATIONS INTEGRATED SYSTEMS L.P., Defendant.

          MEMORANDUM OPINION AND ORDER

          SIDNEY A. FITZWATER, UNITED STATES DISTRICT JUDGE.

         In this action alleging claims for age discrimination under the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq., and the Texas Commission on Human Rights Act (“TCHRA”), [1] Tex. Labor Code Ann. § 21.001 et seq. (West 2015), and disability discrimination under the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq., and the TCHRA, defendant L-3 Communications Integrated Systems, L.P. (“L-3”) moves for summary judgment. For the following reasons, the court grants the motion and dismisses this action by judgment filed today.

         I

         Plaintiff Wendy Barnard (“Barnard”) was hired in 1999 by defendant L-3, a manufacturing facility specializing in the modification of military aircraft for the United States Department of Defense and allied governments.[2] At the time of her termination, Barnard was working for L-3 as a Material Requirements Planner (“MRP”) under the supervision of Christopher J. Lytle (“Lytle”) and Regina Chandler (“Chandler”). Barnard maintains that her daily job duties involved sitting at an office desk and working at a computer, and that she did not work on or operate heavy equipment, trucks, forklifts, or scooters, did not work in the shops, and did not work on the flight line or on aircraft.

         All employees of L-3 are required as a condition of employment to comply with L-3's Substance Abuse Policy (“Policy”).[3] Under the Policy, the use of any drug that adversely affects an employee's job performance or safety is prohibited. L-3 employees are also prohibited from being on L-3's premises under the influence of drugs or alcohol, and all employees are subject to random drug screens. L-3 employees are also subject to reasonable cause/reasonable suspicion drug testing based on an observed impairment, such as slurred speech, disorientation, or glassy eyes. Under the Policy, if an employee tests positive for drugs, she may be suspended without pay pending further review.

         During her employment with L-3, Barnard was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”), for which she took legally-prescribed Adderall. She also suffered from chronic back pain caused by a degenerative back condition, for which she took legally-prescribed Hydrocodone. In July 2009 L-3 selected Barnard for a random drug screening. In connection with this screening, Barnard disclosed to L-3 that she was taking prescription Adderall to manage her ADHD. Although Barnard tested positive for amphetamines, an ingredient in Adderall, L-3 permitted Barnard to return to work and did not instruct her that she could not take Adderall before coming to work or at any other time.

         On an April 28, 2014 Medication Information form, Barnard indicated that she had been prescribed Hydrocodone. L-3 maintains that at the time she filled out the form, Barnard was given a “narcotic warning” that she could not take Hydrocodone six to eight hours prior to coming to work.

         On March 20, 2015 Barnard informed Lytle that she was taking prescription Hydrocodone for her back pain. Lytle sent Barnard to L-3's medical department for an examination. Barnard disclosed to the attending nurse, who she believes was Rachel Lancaster (“Lancaster”), that she was taking Hydrocodone as prescribed for her back pain. L-3 maintains that its company policy specifically precluded the use of any narcotic pain medication by any employee six hours prior to coming to work, and that nurses were required to provide this instruction to all employees who were taking any narcotic pain medications.

         Barnard contends that although Lancaster initially told Barnard not to take the prescribed medication for four to six hours prior to coming to work in the mornings, Lancaster changed her position after Barnard explained the nature of her sedentary desk computer job duties.[4]According to Barnard, Lancaster told Barnard that it would be okay for her to take the Hydrocodone as prescribed, and that she would let Lytle know “it was all ok.” P. Br. 11.

         Barnard and L-3 offer different versions of the events leading up to Barnard's May 5, 2015 termination. According to L-3, Lytle and Chandler conducted an early morning staff meeting on April 22, 2015 during which they both noticed that Barnard appeared to be “out of it” and very lethargic. Two days later, Susan Payne (“Payne”), a fellow L-3 employee, observed Barnard in the restroom. Payne noticed that Barnard had a glazed look, slurred speech, and appeared to be impaired, and she reported Barnard's behavior to Lytle.

         Barnard disputes that she was lethargic or “out of it” during the April 22, 2015 staff meeting. She also explains that, on April 22, 2015, she underwent a cosmetic procedure that caused swelling and painful fever blisters on her lips, and that she had been examining and putting ointment on her swollen lips when Payne encountered her in the restroom on April 24, 2015. She contends that she did not have slurred speech that day, although the painful fever blisters on her swollen lips made it more difficult to talk, and that she was neither dizzy nor drowsy that morning and had no problems at all doing her work.

         Based on his own observations during the April 22, 2015 staff meeting and the behavior Payne reported, Lytle determined that Barnard should be required to take a reasonable cause/reasonable suspicion drug test. Barnard consented and tested positive for methamphetamines, opioids, and amphetamines.[5] When she reviewed the results of the drug test, she signed the result sheet, and did not dispute that she had tested positive for these substances. She also admitted that she took pain medication on the morning of April 24, 2015 and that she takes such medication every morning.

         Barnard was suspended pending further investigation and was not allowed to return to work. On May 5, 2015 L-3 terminated Barnard's employment. According to L-3, Barnard's employment was terminated for three reasons: (1) she had violated L-3 company policies and was incapacitated, incoherent, and impaired in the workplace; (2) she disregarded the prior narcotic warnings and took narcotics prior to coming to work on April 24, 2015; and (3) she failed to disclose on her March 20, 2015 Medical Information sheet that she was taking Adderall.

         At the time of her termination Barnard was working as a nonexempt Supply Chain Associate. After she was terminated, L-3 opened a requisition to fill Barnard's prior position, but the position remained unfilled. On July 18, 2015, almost two months after Barnard's termination, Carrie Ingram (“Ingram”), a 38-year-old employee of L-3, [6] was promoted to an exempt Material Planning and Control Specialist position. L-3 maintains that as a Material Planning and Control Specialist, Ingram assumed the duties of the nonexempt Supply Chain Associate position that Barnard had previously performed, and that Barnard was not replaced; instead, her job duties were assigned to another exempt employee who performed additional job duties for L-3.

         Barnard filed this lawsuit against L-3, alleging claims for disability discrimination, including failure to reasonably accommodate, in violation of the ADA and TCHRA, and age discrimination, in violation of the ADEA and TCHRA. L-3 moves for summary judgment on Barnard's claims. Barnard opposes the motion.

         II

         When a party moves for summary judgment on claims on which the opposing party will bear the burden of proof at trial, the moving party can meet its summary judgment obligation by pointing the court to the absence of admissible evidence to support the nonmovant's claims. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party does so, the nonmovant must go beyond her pleadings and designate specific facts showing 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 in the nonmovant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The nonmovant's failure to produce proof as to any essential element of a claim 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 if the nonmovant fails to meet this burden. Little, 37 F.3d at 1076.

         III

         The court turns first to Barnard's claim for failure to accommodate under the ADA and TCHRA.

         A

         The ADA prohibits discrimination in employment against a qualified individual on the basis of her disability. See 42 U.S.C. § 12112(a). Under the ADA, to “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 operation of the business of such covered entity.” Id. § 12112(b)(5)(A). Similarly, the TCHRA provides that it is unlawful for an employer “to fail or refuse to make a reasonable workplace accommodation to a known physical or mental limitation of an otherwise qualified individual with a disability . . . unless [the employer] demonstrates that the accommodation would impose an undue hardship on the operation of the business.” Tex. Lab. Code Ann. § 21.128(a).

         The elements of a failure-to-accommodate claim under the ADA and TRHCA are substantially similar. To prevail on an ADA failure-to-accommodate claim, a plaintiff must show that: “(1) the plaintiff is a qualified individual with a disability; (2) the disability and its consequential limitations were known by the covered employer; and (3) the employer failed to make reasonable accommodations for such known limitations.” Feist v. La., Dep't of Justice, Office of the Atty. Gen., 730 F.3d 450, 452 (5th Cir. 2013) (footnote and internal quotation marks omitted). Under the TCHRA, to establish a claim “based on an employer's failure to provide a reasonable accommodation, the plaintiff must show: (1) she is an individual with a disability; (2) the employer had notice of the disability; (3) with reasonable accommodations she could perform the essential functions of the position; and (4) that the employer refused to make such accommodations.” Tex. Dep't of State Health Servs. v. Rockwood, 468 S.W.3d 147, 154-55 (Tex. App. 2015, not pet.).

         B

         L-3 moves for summary judgment on Barnard's failure-to-accommodate claim on the ground that Barnard's alleged disability on the basis of ADHD was not open and obvious and Barnard never provided any written documentation to L-3 that she had any restrictions or limitations that required reasonable accommodations for her ADHD. Moreover, Barnard testified during her deposition that she was not under any physician restrictions that limited her ability to work as a result of her ADHD, nor did she request any accommodation regarding her ADHD. See D. App. 56 (Barnard testified that other than allowing her to screen print and take notes during training, she did not request any accommodation to address concerns or problems she was experiencing from her ADHD).

         In response, Barnard contends that she requested a reasonable accommodation to take prescribed medication (Adderall) for her diagnosed and disclosed ADHD, and to take prescribed medication (Hydrocodone) for her diagnosed and disclosed chronic back pain from a degenerative back condition. Barnard maintains that she “was not reasonably accommodated and afforded the opportunity to explain the test results or have her physician rectify the situation prior to her May 5, 2015 termination and after the April 24, 2015 drug screen as provided by L-3 policy.” P. Br. 42-43. She also contends that L-3's

supervisors and nurse personnel that were well aware of Plaintiff's disabilities and use of prescribed medication to treat same yet Defendant proceeded to terminate Plaintiff's employment without followup or engagement in the ADA interactive process to see if she could be reasonably accommodated to perform her job given the disclosure of Plaintiff's ADHD and chronic back pain disabilities and prescription medications needed to treat same. Defendant could have reasonably accommodated Plaintiff and easily offered Plaintiff a leave of absence, referral to the company employee assistance program or even up to 12 weeks of job protected FMLA leave or other short-term leave given her long tenure to receive time off for any suggested assessment, treatment and recovery to exhaust all avenues short of termination.

P. Br. 43.

         L-3 replies, inter alia, that it is undisputed that Barnard never requested any accommodation for her ADHD or her occasional back pain that was not provided by L-3, and that there can be no liability for a failure to accommodate when Barnard never requested an accommodation due to any alleged disability that was denied by L-3.

         C

         To the extent Barnard contends that L-3 failed to accommodate her diagnosed and disclosed chronic back pain from a degenerative back condition, she has not pleaded such a claim. The only disability Barnard alleges in her complaint is ADHD. In fact, nowhere in her complaint does Barnard even mention back pain caused by a degenerative back condition. Accordingly, Barnard cannot rely on this new claim (i.e., failure to accommodate Barnard's chronic back pain) as a basis to avoid summary judgment. See, e.g., Orthoflex, Inc. v. ThermoTek, Inc., 983 F.Supp.2d 866, 873 (N.D. Tex. Oct. 31, 2013) (Fitzwater, C.J.) (“[A] claim which is not raised in the complaint but, rather, is raised only in response to a motion for summary judgment is not properly before the court.” (quoting Bennett v. Dall. Indep. Sch. Dist., 936 F.Supp.2d 767, 781 (N.D. Tex. 2013) (Fitzwater, C.J.))), appeal docketed, No. 16-11381 (5th Cir. Sept. 16, 2016).

         Even assuming arguendo that Barnard had properly pleaded a failure-to-accommodate claim based on her degenerative back condition, she has not adduced any evidence that would enable a reasonable jury to find that she ever requested an accommodation for either her chronic back pain or her ADHD that she did not receive. Under the ADA, it is unlawful for an employer to fail to accommodate the known limitations of an employee's disability. “An employee who needs an accommodation because of a disability has the responsibility of informing her employer.” EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 621 (5th Cir. 2009). “[The Fifth Circuit] has recognized that ‘where the disability, resulting limitations, and necessary reasonable accommodations, are not open, obvious, and apparent to the employer, the initial burden rests primarily upon the employee . . . to specifically identify the disability and resulting limitations, and to suggest the reasonable accommodations.'” Id. (quoting Taylor v. Principal Fin. Grp., 93 F.3d 155, 165 (5th Cir. 1996)); see also Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 735 n.4 (5th Cir. 1999) (“Employers cannot be expected to anticipate all the problems that a disability may create on the job and spontaneously accommodate them. Accordingly, the burden is on the employee to request an accommodation.” (citations omitted)). “When a qualified individual with a disability requests a reasonable accommodation, the employer and employee should engage in flexible, interactive discussions to determine the appropriate accommodation.” EEOC v. Agro Distrib, LLC, 555 F.3d 462, 471 (5th Cir. 2009).

         Barnard suggests in her summary judgment response that L-3 violated the ADA and TCHRA when it terminated her employment without first engaging in the interactive process[7]to determine whether Barnard could be reasonably accommodated through a leave of absence, referral to the company employee assistance program, or protected Family and Medical Leave Act or other short term leave.[8] But Barnard has not introduced any evidence that would enable a reasonable jury to find that the necessary reasonable accommodations for her ADHD or chronic back pain were obvious, or that she ever requested any of the accommodations she proposes in her brief. See, e.g., Griffin v. United Parcel Serv., Inc., 661 F.3d 216, 224 (5th Cir. 2011) (“[W]here the disability, resulting limitations, and necessary reasonable accommodations, are not open, obvious, and apparent to the employer, the initial burden rests primarily upon the employee . . . to specifically identify the disability and resulting limitations, and to suggest the reasonable accommodations.” (citations omitted)); Chevron Phillips Chem. Co., 570 F.3d at 621 (“An employee who needs an accommodation because of a disability has the responsibility of informing her employer.”). In fact, Barnard admits that she never requested an accommodation other than asking to be allowed to print out materials during training and asking for an ergonomic chair, both of which were granted.[9]Accordingly, the court grants L-3's motion for summary judgment dismissing Barnard's failure-to-accommodate claims under the ADA and TCHRA.

         IV

         The court turns next to Barnard's claim that L-3 violated the ADA and TCHRA by discriminating ...


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