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Kaye v. BNSF Railway Co.

United States District Court, N.D. Texas, Fort Worth Division

May 31, 2018

AMBER KAYE, Plaintiff,



         Before 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.


         Plaintiff's Claims

         Plaintiff 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 Code.


         Grounds of the Motion

         Defendant 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.


         Undisputed Facts

         The summary judgment record establishes without dispute the following facts pertinent to the first three grounds of the motion:

         Plaintiff worked for defendant from 2012 until August 26, 2015, as an international border customs clerk ("customs clerk"). Doc.[1] 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. Id.

         When 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.

         On 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.

         On May 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.[2]

         In June 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.

         On June 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

         On July 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, ΒΆ 13; Doc. 51 at 47-48. Her supervisors further offered to let her leave early and to arrange for a ride ...

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