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Caplan v. Fluor Enterprises, Inc.

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

April 8, 2019

DANIEL CAPLAN, Plaintiff,
v.
FLUOR ENTERPRISES, INC., Defendant.

          MEMORANDUM OPINION AND ORDER

          SIM LAKE UNITED STATES DISTRICT JUDGE

         Plaintiff, Daniel Caplan ("Caplan"), brings this action against defendant, Fluor Enterprises, Inc. ("FEI"), for disability-discrimination, failure to accommodate, and retaliatory discharge in violation of the Americans with Disabilities Act, as amended, 42 U.S.C. § 12111, et seq. ("ADA"); and for interference and/or retaliatory termination in violation of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq. Pending before the court are Plaintiff's Motion for Partial Summary Judgment ("Caplan's MPSJ") (Docket Entry No. 28), Defendant Fluor Enterprises, Inc.'s Motion for Summary Judgment ("FEI's MSJ") (Docket Entry No. 31), and Defendant Fluor Enterprises, Inc.'s Objections to Plaintiff's Summary Judgment Evidence and Motion to Strike ("FEI's Objections and Motion to Strike") (Docket Entry No. 38). For the reasons set forth below, Caplan's MPSJ will be denied, FEI's MSJ will be denied, and Fluor's Objections and Motion to Strike will be granted in part and denied in part.

         I. Standard of Review

         Summary judgment is authorized if the movant establishes that there is no genuine dispute about any material fact, and the law entitles it to judgment. Fed.R.Civ.P. 56. Disputes about material facts are "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2511 (1986). The Supreme Court has interpreted the plain language of Rule 56 to mandate the entry of summary judgment "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2552 (1986). A party moving for summary judgment "must 'demonstrate the absence of a genuine issue of material fact,' but need not negate the elements of the nonmovant's case." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (quoting Celotex, 106 S.Ct. at 2553-2554) . "If the moving party fails to meet this initial burden, the motion must be denied, regardless of the nonmovant's response." Id. If, however, the moving party meets this burden, the nonmovant must go beyond the pleadings and show by affidavits, depositions, answers to interrogatories, or other admissible evidence that facts exist over which there is a genuine issue for trial. Id. "[T]he court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097, 2110 (2000). Factual controversies are to be resolved in favor of the nonmovant, "but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts." Little, 37 F.3d at 1075." [T] he nonmoving party's burden is not affected by the type of case; summary judgment is appropriate in any case 'where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant.'" Id.

         II. Undisputed Facts[1]

         FEI hired Caplan as a Specialist III, Material Management, on October 31, 2011, to work in the Quality Department where he reported to Bob Yur (Office Manager) and Kenneth J. Taylor (Quality Manager).[2] In 2015 Caplan's job title was reclassified as Associate Quality Specialist III within the reorganized Quality Department, a title he held until he was laid off on August 1, 2016.[3] FEI's Quality Department provides supplier quality-surveillance ("SQS") services to clients who are billed for the services.[4] In 2 015 Caplan worked as SQS Coordinator on a project in Sakhalin Island, Russia.[5] In mid-2015, FEI's client on the Sakhalin Island project asked FEI to remove Caplan from the project due to his frequent absences. On July 19, 2015, Taylor and representatives of FEI's Human Resources ("HR") department met with Caplan to discuss his absences, problems his absences were causing the project, and options available to him for taking leave - including short-term disability and FMLA leave.[6] Taylor ultimately replaced Caplan on the Sakhalin Island project with Henry Howski, and reassigned Caplan to the SASOL Project, a project in Louisiana.[7]

         Later, in March of 2016 when Caplan began missing work about once a week, he asked Yur and Taylor to allow him to work from home on days that he was not able to travel to the office because of an unspecified health problem. Yur and Taylor both denied Caplan's request to work from home. Caplan did not notify HR personnel about his request to work from home and did not ask for a reasonable accommodation or FMLA leave.[8]

         In March of 2016 Caplan met with Taylor and Senior HR Specialist Melanie Lindstrom ("Lindstrom") to discuss his ongoing attendance problems. At the meeting Caplan repeated his request to work from home.[9] Caplan was experiencing symptoms that were unpredictable and could incapacitate him for several hours, but he was not aware of the medical condition causing his symptoms.[10]Lindstrom gave Caplan information about leave options, and Caplan eventually elected to take short-term disability leave that began on March 24, 2016.[11]By letter dated April 13, 2016, FEI informed Caplan that his approved short-term disability leave had also been designated as FMLA leave pursuant to FEI's leave policies.[12] In June of 2 016 Taylor assigned Henry Howski - who had completed the Sakhalin Island project - to the SASOL project to fill the gap left while Caplan was on short-term disability leave.[13]

         While on leave Caplan was diagnosed with colitis, [14] but he never informed FEI and never requested an accommodation other than the leave that was granted and the ability to work from home that was not granted.[15] In July of 2 016 Caplan informed Taylor and Lindstrom that his doctor authorized him to return to work on August 1, 2016.[16] Taylor instructed Caplan to report to Yur on August 1, 2016.[17] In the afternoon of August 1, 2016, Taylor and Lindstrom met with Caplan to tell him that he was being laid off in a reduction-in-force.[18] Although eligible for rehire by FEI, Caplan never applied for rehire because FEI had no jobs available.[19]

         III. FEI's Motion for Summary Judgment

         Caplan alleges that FEI discriminated against him on the basis of disability in violation of the ADA and the FMLA by discharging him from his position as an Associate Quality Specialist III on August 1, 2016, and by discharging him in retaliation for having taken FMLA and short-term disability leave.[20] FEI argues that it is entitled to summary judgment on Caplan's claims because

the record evidence, consisting largely of Caplan's deposition admissions, establishes that: (1) Caplan cannot establish a prima facie case for discrimination under the ADA; (2) Caplan was laid off for legitimate, nondiscriminatory and nonretaliatory reasons; (3) Caplan has no evidence to establish that FEI's reason for laying him off was pretextual; . . . (5) Caplan cannot establish a retaliation case under either the ADA or the FMLA. . . .[21]

Asserting that he has a disability, that he was qualified for his job, that he was discharged because of his disability, that FEI's stated reason for his discharge is not true but, instead, a pretext for disability discrimination and retaliation for having taken FMLA and disability-related leave Caplan urges the court to deny FEI's MS J.[22]

         A. FEI is Not Entitled to Summary Judgment on Caplan's ADA Discrimination Claim

         1. Applicable Law

         Title I of the ADA makes it unlawful for an employer to discriminate against "a qualified individual on the basis of disability in regard to . . . discharge of employees ..." 42 U.S.C. § 12112(a). The ADA defines "qualified individual" as "an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). Disability is defined as:

(A) a physical or mental impairment that substantially limits one or more major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.

42 U.S.C. § 12102(1)(A)-(C). See also Milton v. Texas Department of Criminal Justice, 707 F.3d 570, 573 (5th Cir. 2013).

         Caplan may establish an ADA discrimination claim by using direct evidence or the indirect method of proof set forth in McDonnell Douglas Corp. v. Green, 93 S.Ct. 1817 (1973) . See Seaman v. CSPH, Inc., 179 F.3d 297, 300 (5th Cir. 1999). Direct evidence "is evidence that, if believed, proves the fact of discriminatory animus without inference or presumption." Rachid v. Jack In The Box, Inc., 376 F.3d 305, 310 n.6 (5th Cir. 2004).

         Caplan has not cited direct evidence of discrimination and does not argue that this is a direct evidence case.

         Caplan's initial burden under the McDonnell Douglas framework is to establish a prima facie case of discrimination based upon his disability by showing (1) he has a disability, (2) he was qualified for the job, and (3) he was subjected to an adverse employment decision, i.e., he was discharged, on account of his disability. Caldwell v. KHOU-TV, 850 F.3d 237, 241 (5th Cir. 2017). If Caplan establishes a prima facie case of discrimination, a presumption of discrimination arises, and the burden shifts to FEI to articulate a legitimate, non-discriminatory reason for discharging him. Id. at 241-42. Once FEI articulates a legitimate, nondiscriminatory reason for the discharge, the burden shifts back to Caplan who may prove intentional discrimination by producing evidence from which the jury could conclude that FEI's articulated reason is a pretext for discrimination. Id. at 242. "A plaintiff may show pretext either through evidence of disparate treatment or by showing that the employer's proffered explanation is false or unworthy of credence." Id. (quoting Jackson v. Cal-W. Packaging Corp., 602 F.3d 374, 378-79 (5th Cir. 2010)). "An explanation is false or unworthy of credence if it is not the real reason for the adverse employment action." Id. (quoting Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003)) .

         2. Application of the Law to the Undisputed Facts

         (a) Caplan Establishes a Prima Facie Case

         (1) Caplan Has a Disability

         FEI has not challenged Caplan's assertion that he has colitis or that colitis may be considered a disability under the ADA.[23]Therefore, for the purposes of this motion and the prima facie case analysis, the court accepts that Caplan is a person with a disability. See E.E.O.C. v. Chevron Phillips Chemical Co., LP, 570 F.3d 606, 618 (5th Cir. 2009) (" [R]elapsing-remitting conditions like . . . colitis can constitute ADA disabilities depending on the nature of each individual case.").

         (2) Caplan Is a Qualified Individual

         FEI argues that Caplan cannot establish a prima facie case of ADA discrimination because he cannot establish that he was a qualified individual.[24] An employee is a "qualified individual" under the ADA if he, "with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). See E.E.O.C. v. LHC Group, Inc., 773 F.3d 688, 697 (5th Cir. 2014) (citing Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1093 (5th Cir. 1996) (per curiam) ("To avoid summary judgment on whether he is a qualified individual, [plaintiff] needs to show 1) that he could perform the essential functions of the job in spite of his disability or 2) that a reasonable accommodation of his disability would have enabled him to perform the essential functions of the job.") . "A function is 'essential' if it bears 'more than a marginal relationship' to the employee's job." Id. (quoting Chandler v. City of Dallas, 2 F.3d 1385, 1393 (5th Cir. 1993), modified on other grounds by Kapche v. City of San Antonio, 304 F.3d 493 (5th Cir. 2002) (per curiam)).

         FEI argues that Caplan was not a qualified individual because

[r]egular, predictable attendance on location was at all times an essential function of Caplan's job as an Associate Quality Specialist III and in the role he was performing prior to going on leave - an SQS Coordinator, because these positions required regular face-to-face interaction and team coordination.[25]

         Citing Credeur v. Louisiana, Through the Office of the Attorney General, 860 F.3d 785, 793-95 (5th Cir. 2017), FEI argues that the ability to appear for work is generally recognized as an essential job function, that Caplan's deposition testimony clearly indicates that he could not perform this essential function of his job and, therefore, that Caplan was not a qualified individual under the ADA. In Credeur the Fifth Circuit observed that "there is a general consensus among courts, including ours, that regular worksite attendance is an essential function of most jobs." Id. at 793. Asserting that Caplan admitted during his deposition that neither the timing nor the severity of his colitis flare-ups can be predicted, and that when flare-ups occur he is unable to work either on location or at home, FEI argues that Caplan has failed to produce any evidence that he would have been able to perform the essential elements of his job - or any other job - with or without reasonable accommodations.[26]

         Acknowledging that his FMLA leave began on March 24, 2016, and ended on June 17, 2016, and that he continued on short-term disability leave until August 1, 2016, the date his doctor released him to return to work, Caplan argues that he was a qualified individual with a disability because his doctor released him to return to work without any restrictions.[27] In his Declaration Caplan states:

At the time I was released to return back to work, my health had improved a lot based on the treatment I had received over the past several months, and I did not have any restrictions in order to do my job. I could perform my job duties without the need for any accommodations, and I did not anticipate having any unexpected absences. I know this because of my years of experience/work in the Quality Department of Fluor.[28]

         Citing his work record and the Taylor Deposition, Caplan argues that there is no dispute that he met the minimum qualifications for the job he held, and that FEI had no problems with his performance other than his absences.[29]

         Citing Hacienda Records, L.P. v. Ramos, 718 Fed.Appx. 223, 235 (5th Cir. 2018) (per curiam), FEI argues that the court should disregard and strike Caplan's Declaration testimony because it "contradicts his prior sworn deposition testimony concerning whether his colitis prevented him from demonstrating regular, predictable attendance, without explanation."[30] In Hacienda Records, 718 Fed.Appx. at 235, the court applied the sham affidavit rule articulated in S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996), to hold that the plaintiff could not raise a fact issue in the face of summary judgment simply by submitting an affidavit that contradicts prior sworn testimony. See also Cleveland v. Policy Management Systems Corp., 119 S.Ct. 1597, 1603 (1999) (recognizing that [f]ederal courts "have held with virtual unanimity that a party cannot create a genuine issue of fact sufficient to survive summary judgment simply by contradicting his or her own previous sworn testimony (by, say, filing a later affidavit that flatly contradicts that party's earlier sworn deposition) without explaining the contradiction or attempting to resolve the disparity"). Asserting that "[t]he deposition questions were not focused on Caplan's health at the time he was returning to work, ""[31] and that FEI's "attorney did not ask Caplan questions surrounding his release to return to work without restrictions, which is actually consistent with his declaration, "[32]Caplan argues "the fact that [he] did actually return to work on August 1, 2016, in compliance with his doctor's release, confirms that he was able to do his job at that time."[33]

         Caplan's deposition testimony about the symptoms he experiences when his colitis flares up does not contradict the evidence provided either by his doctor's release or by his declaration because his deposition testimony does not address the efficacy of the treatment he received while on leave or the frequency with which he experiences colitis flare-ups. FEI's cite to Caplan's poor attendance history before taking FMLA and short-term disability leave does not support FEI's contention that Caplan was not a qualified individual with a disability because FEI acknowledges that "even before Caplan was diagnosed with colitis, or went on short-term disability, he was not regularly attending work and for a variety of reasons which were non-health related."[34]Because Caplan declares that when he was released to return to work his health had improved based on the treatment he had received while on leave, [35] because the release to return to work on August 1, 2016, that Caplan received from his doctor does not cite any restrictions, [36] and because Caplan's deposition testimony regarding the symptoms he experiences when his colitis flares up does not address either the efficacy of the treatment Caplan received while on leave or the frequency with which Caplan experiences flare-ups, the court concludes that Caplan has presented evidence capable of proving that he is a qualified individual, i.e., a disabled individual capable of performing the essential functions of his position without a reasonable accommodation. Accordingly, FEI's objection to ¶ 6 of Caplan's Declaration will be overruled, and FEI's motion to strike ¶ 6 of Caplan's Declaration will be denied.

         (3) Caplan's Disability Factored into FEI's Decision to Discharge Him

         FEI argues that Caplan cannot establish a prima facie case of ADA discrimination because he cannot establish that his colitis was a factor in the layoff decision.[37] Citing Taylor v. Principal Financial Group, Inc., 93 F.3d 155, 163 (5th Cir.), cert, denied, 117 S.Ct. 586 (1996), FEI argues that Caplan must demonstrate "that the employer knew of [his] substantial physical or mental limitation."[38] Citing Caplan's deposition testimony that he never told any manager at FEI, including Taylor, that he had colitis, and that he never requested any accommodation from FEI and he never discussed his medical treatment or condition with Taylor after he was diagnosed with colitis, FEI argues that [b]ecause there is no evidence in this case that Taylor was aware of Caplan's colitis, or any physical condition that he alleges was disabling, Caplan's colitis could not possibly have played a role in Taylor's decision to terminate his employment. Nor does Caplan have competent summary judgment evidence indicating that Taylor perceived him as disabled while he was out on medical leave. Because there is no evidence that Taylor was aware of Caplan's claimed disability at the time he selected Caplan for layoff, FEI is entitled to judgment as a matter of law.[39]

         Caplan responds by citing ¶ 4 of his declaration and emails that he sent to Taylor and Lindstrom keeping them informed about hospitalization - throughout the period that he was on FMLA and short-term disability leave, [40] and the release that he obtained from his doctor allowing him to return to work without restrictions on August 1, 2016.[41] Caplan also cites his own deposition testimony that he "was fired on the same day he returned from his medical leave, and Taylor specifically referenced [his] disability leave and being gone so long."[42] The emails that Caplan sent to Taylor and Lindstrom informed them of the symptoms that he was experiencing and his on-going need for short-term disability leave, and the work release that Caplan received from his doctor was without restriction. Regarding Taylor's explanation for why he was discharged, Caplan testified as follows:

Q. As accurately as you recall, can you tell me about the conversation -- that is, who said what -- in the meeting on August 1, 2016, with yourself, Ms. Lindstrom, and Mr. Taylor?
A. Yes. Ken simply said, "Since you were gone so long, we had to replace you on the job; and we no longer have a spot for you, and we have to let you go."

Q. And do you recall it in exactly those words, or do you recall anything different?

A. No, that was about dead on.
Q. Since you were gone so long, the company had to replace you?
A. Uh-huh.
Q. Yes?
A. Correct.
Q. And so to the best of your recollection as you sit here today, as accurately as you can repeat it, those are the words he used: Because you have been gone so long, we had to replace you?
A. Yes, sir.
Q. Did he use the word "layoff"? He told you you were being laid off.
A. He told me I was being laid off, but his main words: Since you were gone so long, we had to replace you on the job.
Q. What, if anything, did you say in response?
A. I said, "This is completely unfair. I was gone on disability. From what I understood, you have to hold my position and you can't replace me on this project."

Q. What, if anything, did he and/or Ms. Lindstrom say in response?

A. He responded that, because I was gone so long, they had to replace me; and you're being laid off. Because you're not on disability anymore, we can lay you off.[43]

         Moreover, in a letter that FEI sent to the Equal Employment Opportunity Commission ("E.E.O.C.") regarding Caplan's complaint, FEI stated "Charging Party exhausted his 12 weeks of FMLA leave on June 17, 2016, but remained on leave of absence subsequent to that as an ADA accommodation."[44] The summary judgment evidence is capable of establishing that Taylor and Lindstrom, the people who discharged Caplan the day he returned from short-term disability leave, knew that Caplan suffered from a physical condition considered to be disabling, and that knowledge of Caplan's condition factored into their decision to discharge him.

         (b) FEI Has Articulated a Legitimate, Non-Discriminatory Reason for Caplan's Discharge

         FEI argues that it is entitled to summary judgment on Caplan's claim for disability discrimination arising from Caplan's discharge because Caplan was discharged for a legitimate, non-discriminatory reason, i.e., he was discharged in a reduction-in-force necessitated by lack of work.[45] Reduction-in-force is a legitimate, non-discriminatory reason for discharging an employee. See E.E.O.C. v. Texas Instruments, Inc., 100 F.3d 1173, 1181 (5th Cir. 1996) (recognizing that a reduction-in-force "is itself a legitimate, nondiscriminatory reason for discharge").

         (c) Caplan Raises a Fact Issue as to Pretext

         Under the McDonnell Douglas burden-shifting framework, once FEI has produced evidence of a legitimate, nondiscriminatory reason for the adverse employment action, Caplan must ...


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