United States District Court, W.D. Texas, El Paso Division
REPORT AND RECOMMENDATION
F. CASTANEDA, UNITED STATES MAGISTRATE JUDGE.
the Court is Defendant GC Services, LP's
(“GC”) Motion for Summary Judgment
(“Motion”) filed on September 8, 2017. (ECF.
145). On January 19, 2018, Plaintiff Alex Zamora (“Mr.
Zamora”), pro se, filed a Response to GC's
Motion (ECF. 149), and on February 16, 2018, GC filed a
Reply. (ECF No. 151). Finally, on March, 23, 2018, pursuant
to 28 U.S.C. § 636(b)(1)(B) and Rule 1(d) of Appendix C
to the Local Rules, GC's Motion was referred to this
Court. (ECF. 152). For the reasons that follow, this Court
RECOMMENDS that GC's Motion be
employed Mr. Zamora as a unit manager at its Reliant Energy
office in El Paso, Texas. (D. Ex. 1G). Mr. Zamora's
position required frequent interaction with employees and
customers. Specifically, Mr. Zamora must manage and resolve
high pressure situations involving customers and employees,
participate in disciplinary actions, supervise team members,
and train other employees. (D. Ex. 1B).
16, 2012, Mr. Zamora went to University Medical Center
(“UMC”) and was thereafter transferred to El Paso
Psychiatric Center on July 25, 2012. (P. Exs. 1, 1A). The
exact details surrounding Mr. Zamora's hospitalization
and subsequent commitment to El Paso Psychiatric Center are
in dispute. (ECF. 145: 3, 149: 1, D. Ex. 7: 1-2, P. Ex. 1A).
Following Mr. Zamora's trip to UMC, Mr. Zamora's
father filed a request for personal leave of absence for Mr.
Zamora on July 23, 2012. (D. Ex. 1C). The request form
indicated that Mr. Zamora had a serious medical condition.
(D. Ex. 1C). On July 27, 2012, Mr. Zamora's physician at
El Paso Psychiatric Center sent GC a certification for his
leave of absence. In this certification, Mr. Zamora was
[A]nxiety and suicidal thoughts; thoughts of wanting to hurt
others. He was experiencing auditory hallucinations, racing
thoughts, sleeping 3-6 hrs/wk. Inability to
(D. Ex. 1D).
August 1, 2012, GC received Mr. Zamora's Fit for Duty
Release form from El Paso Psychiatric Center signed by Nurse
Soledad Flores. (D. Ex. 1F). The form only displayed a
checked box, which indicated that Mr. Zamora was able to
return to work without any restrictions on August 13, 2012.
(D. Ex. 1F). Worried that this form was devoid of any
substance, Meagan Conway, GC's general counsel, began a
background check on Mr. Zamora. (D. Ex. 7: 2-4). Conway
feared that Mr. Zamora may pose a safety risk for other
employees. (D. Ex. 7: 2-4). In her research, Conway found
that Mr. Zamora had been arrested and convicted of aggravated
assault with a deadly weapon in July of 2011. (D. Exs. 1E, 2:
25-29, 3). Although the exact details surrounding Mr.
Zamora's conviction are in dispute, the parties do not
dispute the fact that Mr. Zamora was arrested and convicted
of aggravated assault with a deadly weapon. (ECF. 149: 15,
ECF. 145: 4. D. Ex. 2: 25-28).
this discovery, Conway attempted to call Mr. Zamora's
physician at El Paso Psychiatric Center, but was unable to
reach the physician. (D. Ex. 7: 3). The call was answered by
another El Paso Psychiatric Center employee, and what
occurred during this conversation is in dispute. (D. Ex. 7:
3, P. Ex. 1C).
August 7, 2012, Conway and Kim Jackson, the former Assistant
Vice President of Employee Relations for GC, made the
decision to terminate Mr. Zamora's employment. (D. Exs.
7: 4, 8: 3). Conway and Jackson feared that Mr. Zamora may be
a threat to fellow GC employees. (D. Exs. 7: 2-4, 8: 2-4).
According to GC, three days later on August 10, 2012, in a
meeting with Isabel Cigarroa and Paul Gazeley, Mr. Zamora was
terminated pursuant to instructions from Jackson. (D. Exs. 4:
48-50, 8: 3). In this meeting, for the first time, Mr. Zamora
informed GC of his bipolar disorder and paranoid
schizophrenia. (D. Ex. 4: 46-98). Cigarroa told Mr. Zamora
that he was terminated because he posed a threat to other
employees. (D. Exs. 7: 4, 8: 4).
Zamora disputes GC's version of events. First, Mr.
Zamora, in his Response, points to his State Court Petition
and indicates that on August 8, 2012, he informed Zoraida
Femat, GC's Human Resources Generalist, that he required
a modified work schedule, because his medication made him
drowsy in the evening. (D. Ex. 6: 3). Further, once again
pointing to his State Court Petition, Mr. Zamora argues that
he was fired on August 8, 2012, and was never told by
Cigarroa and Gazeley that he posed a threat to other
employees. (ECF. 149: 15-16). Importantly, however, the
parties do not dispute the fact that Mr. Zamora suffered from
bipolar disorder and paranoid schizophrenia at the time of
to his termination, Mr. Zamora filed a charge with the EEOC,
and filed suit in El Paso state court on November 21, 2014.
(D. Exs.1H, 6). In Mr. Zamora's First Amended Petition,
Mr. Zamora alleged disability discrimination, retaliation,
and failure to provide reasonable accommodations under the
Americans with Disabilities Act (“ADA”).
Plaintiff's First Amended Petition and Request for
Disclosure, Zamora v. GC Services LP, No. 2014-DCV-3721, ECF.
1, (210th Dist. Ct., El Paso County, Tex. Feb. 18, 2015). The
case was removed to federal court on February 19, 2015. (ECF.
1). The district court granted GC's Motion to Dismiss on
March, 28, 2015, holding that Mr. Zamora's suit was filed
untimely. (ECF. 18). The Fifth Circuit reversed and remanded.
(ECF. 46). GC now files this Motion alleging that:
(1) Mr. Zamora cannot meet his prima facie case of
discrimination under the ADA;
(2) GC had a legitimate, nondiscriminatory reason for firing
(3) Mr. Zamora never requested a reasonable accommodation
under the ADA; and
(4) No. reasonable accommodations can be made for Mr. Zamora
because he posed a direct threat to others in the work place.
judgment is appropriate when “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). “A genuine dispute of fact exists
when evidence is sufficient for a reasonable jury to return a
verdict for the non-moving party, and a fact is material if
it ‘might affect the outcome of the suit.'”
Willis v. Cleco Corp., 749 F.3d 314, 317 (5th Cir.
2014) (citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)). In deciding whether a genuine dispute
as to material fact exists, a trial court considers all of
the evidence in the record and “draw[s] all reasonable
inferences in favor of ...