United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
MCBRYDE, UNITED STATES DISTRICT JUDGE.
the court for consideration and decision is the motion of
defendant, BNSF Railway Company, for summary judgment on the
claims plaintiff, Amber Kaye, has asserted against it. The
court considered the motion and heard from the parties in
reference thereto at the pretrial conference held May 29,
2018. Having considered the motion, plaintiff's response
thereto, the reply, the record in this action, the applicable
legal authorities, and the verbal presentations of the
parties, through counsel, at the pretrial conference, the
court concludes that the motion should be granted, and that
plaintiff's claims against defendant should be dismissed.
initiated the above-captioned action on August 7, 2017, by
the filing of an original complaint. On March 26, 2018,
plaintiff filed her first amended complaint. In it, plaintiff
alleged claims against defendant for disability
discrimination, failure-to-accommodate, and retaliation, each
arising under the Americans with Disabilities Act, 42 U.S.C.
§§ 12111-12213, and Chapter 21 of the Texas Labor
of the Motion
urges the court to grant its motion for the following
reasons: (1) plaintiff's disability discrimination and
failure-to-accommodate claims fail because plaintiff was not
a "qualified individual, " and she was not
discriminated against because of, nor denied a reasonable
accommodation for, her alleged disability; (2)
plaintiff's retaliation claim fails because plaintiff was
not a "qualified individual, " and she did not
engage in nor was she retaliated against for engaging in
legally protected activity; (3) all of plaintiff's claims
fail because defendant had a legitimate, non-discriminatory
reason for terminating her employment, that was not pretext
for discrimination or retaliation; (4) plaintiff's
failure to mitigate her damages foreclosed her ability to
recover back pay or front pay; and (5) plaintiff's Family
& Medical Leave Act, 28 U.S.C. §§ 2611-2654,
and Title VII, 42 U.S.C. §§ 2000e to 2000e-17,
claims fail because she abandoned them.
summary judgment record establishes without dispute the
following facts pertinent to the first three grounds of the
worked for defendant from 2012 until August 26, 2015, as an
international border customs clerk ("customs
clerk"). Doc. 51 at 1, ¶ 4. As a customs clerk,
plaintiff served as a point of contact for, and otherwise
provide assistance to, defendant's trains crossing the
border between the United States and Canada. Doc. 23 at
37-40. Each customs clerk is assigned to work one of several
eight-hour shifts. Id. at 131; Doc. 51 at 86. In
addition to their regularly scheduled shifts, each customs
clerk was often required to report to work on shifts that
were not their regularly scheduled shifts. Doc. 23 at 152,
¶ 5. At times, an on-call customs clerk was permitted to
refuse when called to cover a shift, but only if there was
another customs clerk with less seniority to whom the shift
could be deferred. Id. at 56-57 & 152, ¶ 5.
If more senior customs clerks were not willing to fill a
shift that became available, it was mandatory for custom
clerks with the least seniority to fill the shift.
plaintiff was hired, she received training on a variety of
matters, including the company's anti-discrimination and
anti-harassment policies, how to report discrimination or
harassment, how to access company policies, and how to access
and use defendant's Employee Assistance Program (,
¶EAP") . Id. at 24 & 167-68,
¶¶ 3 & 5. Plaintiff knew how to access
defendant's company policies, including the policy that
governed how to request an accommodation, at all points
during her employment. Id. at 48 & 118-19.
February 19, 2015, one of plaintiff's supervisors, either
LaDonna Grubbs ("Grubbs") or Dena Wilds
("Wilds"), informed plaintiff that she should use
EAP if she was experiencing problems that would interfere
with her work. Id. at 12-13, 49, 51-52, & 159 at
¶ 5. Plaintiff did not contact EAP until July 20, 2015.
14, 2015, plaintiff was found sleeping at her desk while at
work. Id. at 95-96, 146, & 164. Plaintiff
explained to her supervisor that she was exhausted due to
working a number of days without a day off. Id. at
96 & 164. She was shown leniency for that terminable
offense due to her demanding work schedule. Id. at
96, 105, 158, & 164. She had fallen asleep at her desk on
other occasions. Id. at 70.
2015, plaintiff notified defendant that she was unable to be
on-call during certain times, despite the mandatory nature of
some on-call requests. Id. at 57-59 & 136.
Grubbs reminded plaintiff by letter that plaintiff was not
permitted to unilaterally decide to be unavailable.
Id. at 136 & 152, ¶ 5. The letter further
explained to plaintiff that "[a]ny medical condition
that impacts [plaintiff's] ability to meet [her]
employment obligations must be reviewed and approved with the
BNSF Medical Department." Id. at 13 6.
Plaintiff did not seek assistance from the medical
department. Id.; Doc. 51 at 3.
6, 2015, plaintiff was found huddled over a trash can. Doc.
23 at 60-65 & 152; Doc. 51 at 3. Paramedics were called
and plaintiff was transferred by ambulance to a local
hospital. Doc. 23 at 60-65 & 152; Doc. 51 at 4. Plaintiff
returned to work several days later with a medical release
from her doctor that stated that plaintiff could perform her
job without any medical restrictions. Doc. 23 at 66-68,
137-42, & 152. She also signed a form representing that
she could return to work free of restrictions:
I, Amber M. Kaye, BNSF Employee number B0144 766 acknowledge
that I can safely return to my regular duties following an
absence from work since 6/6/15 (date last worked). I do not
have work place restrictions that prevent me from performing
all of my work tasks safely.
Id. at 143
19, 2015, after noticing that plaintiff was not at her desk,
Grubbs began searching for plaintiff. Id. At 153,
¶¶ 9-11. Eventually, Grubbs looked under
plaintiff's desk to see if plaintiff's purse was
there, based on the belief that if plaintiff's purse was
under her desk it would mean that plaintiff was at least on
site. Id. at 153, ¶ 10; Doc. 51 at 47-48. When
she did, she found plaintiff sleeping on her side,
"wrapped in . . . a coworker's parka." Doc. 23
at 153, ¶ 11. When Grubbs awakened plaintiff, she
reminded plaintiff that if she was experiencing a medical
issue, she needed to go to defendant's medical
department, "otherwise she needed to sit down and do her
job." Id. at 154, ¶ 13; Doc. 51 at 47-48.
Her supervisors further offered to let her leave early and to
arrange for a ride ...