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Sanchez v. City of San Antonio

United States District Court, W.D. Texas, San Antonio Division

May 17, 2019




         On this date, the Court considered Defendant's motion for summary judgment on Plaintiff's claims under the Family and Medical Leave Act (“FMLA”) and the Americans with Disabilities Act (“ADA”) (docket no. 39). In response, Plaintiff has waived his FMLA retaliation claim and focuses solely on the ADA discrimination claim. In that claim, Plaintiff contends that Defendant's assertion that he was terminated from his job for safety violations is pretext, and that he was discriminated against because he has PTSD. After careful consideration, the Court grants summary judgment.


         Plaintiff Gabriel Sanchez's First Amended Complaint (docket no. 14) is the live pleading. Therein, Plaintiff asserts claims for disability discrimination and FMLA retaliation. Plaintiff alleges that he began working for CPS Energy in 2000 and was ultimately promoted to Journeyman Cable Splicer in February 2014. Plaintiff's direct supervisor was Mike Michalek, and his next level manager was Richard Lujan, who was supervised by David Luschen.

         Shortly thereafter, in March 2014, he was injured on the job when he was directed to check a wire for voltage by spiking the cable. The cable turned out to be a high voltage cable, causing a flash and severely injuring Plaintiff. Plaintiff was not written up or disciplined for the incident. Though Lauro Garza (Labor Relations) recommended that Plaintiff be given corrective action, he was voted down by others in the collaborative decisionmaking process. Garza depo. at 48. Plaintiff was out on medical leave from March 27 to May 5, 2014 as a result of his injuries. Plaintiff returned to work on light duty status from May 6 to August 7, 2014. He started to notice that he was becoming more fearful at work, especially when in situations where he had to cut wires.

         In 2014, Plaintiff received a 2.45/3.0 rating from his direct supervisor Mike Michalek and his manager, Richard Lujan, which translated to “highly valued” per CPS's performance review. Michalek and Lujan each indicated that Plaintiff “work[ed] very safe” in the December 2014 performance review. Pl. Ex. 5. Plaintiff was given 2/3 stars for safety. Id.

         In February 2015, Fred Bonewell was hired as the Senior Director of Enterprise Safety. Bonewell depo. at 9. Defendant contends that Bonewell introduced his “actively caring” safety philosophy to CPS in March 2015. He described the philosophy as making sure that employees feel comfortable about their work and who is working with them, and that safety is part of that. Bonewell depo. at 19. He defined the “core” of “actively caring” as “a process of behavior based safety that establishes awareness with employees that they are in control of their safety; that they have the right to refuse to do work if they feel that the work is unsafe; and that they have the ability to provide input on how a work method or a task should be performed to ensure the safety of that work task. It also provides awareness that it's important to provide supervision to the task being performed.” Bonewell depo. at 30.

         On March 12, 2015, Plaintiff left a propane burner on and unattended at a job site, which caused the pot to boil over and start a fire, burning part of a nearby privacy fence. Plaintiff reported it immediately by phone to his manager, Lujan. Plaintiff depo. at 192-194. Lujan and Luschen visited the site, and Plaintiff explained what had happened. Id. at 194-95. Plaintiff stated that they were shorthanded, and he decided to leave the pot, which was not overheated at the time, to assist the apprentices in the manhole because they were asking for help. Id. at 195. Plaintiff admitted that it was his responsibility to monitor the pot. Id. at 196. However, he felt it was more important as a safety issue to help the apprentices, who were working with hot lead. He testified that he asked someone to watch it, but “he didn't want to.” Id. at 197. A Safety Event Notification was generated. Def. Ex. 17. Lujan drafted a Reminder 1[1] notice under the CPS Corrective Action Policy the next day, March 13, and emailed it to Luschen and Veronica Zuniga (HR Generalist) for their thoughts. Def. Ex. 21.

         Plaintiff alleges that there was a training meeting shortly after where the burner incident was discussed. Plaintiff asserts that many journeymen had “burned a pot” and it was “normal, ” but others had not been written up. Plaintiff depo. at 199-204. He did not know whether those other incidents involved personal injury or property damage. Id. at 206-207. Plaintiff also complains that Lujan stated at the meeting that the incident would be used as a training exercise and no one would be written up over it, but he was then given the Reminder 1. Id. at 204-205.

         On May 1, 2015, Plaintiff received the Reminder 1 in person from Lujan. Def. Ex. 16.[2]The Reminder 1 notice states it was for a non-major safety rule violation, and specifically notes that Plaintiff violated the Rule stating that a burner shall never be left unattended. Plaintiff alleges that Lujan told him that “upper management want me to write you up.” Plaintiff depo. at 208-209. Plaintiff did not understand why he was written up a month and a half after the fact, but he did not file a grievance or discuss the Reminder 1 with anyone else and stated that he had no choice but to sign it. Id. at 211. Plaintiff signed the Reminder 1 notice with no additional comments. Plaintiff testified that, as of May 1, 2015, he had no knowledge of having been diagnosed by any doctor with PTSD. Id. at 213-214.

         On May 1, 2015, Plaintiff cut his hand while operating a reciprocating saw. Plaintiff was operating the saw with one hand, and holding the material to be cut in the other hand, and testified that he had never been taught to use two hands when operating the saw. Plaintiff depo. at 217. Plaintiff reported the injury to the other journeymen on the site, who had seniority. Id. at 218-19. He stated they were the “lead man” because the foreman was not there, and “[w]e just put a Band-Aid on it, cleaned it up, no problem, kept working.” Id. at 219. He did not report it to his supervisor.

         When Lujan met with Plaintiff to deliver the Reminder 1 for the burner incident that same day, he noticed that Plaintiff had a band-aid on his hand. Lujan believed that Plaintiff was trying to hide the band-aid/injury. Plaintiff admitted that he might have had his hand in his shirt “to cover my hand a little bit, but I wasn't hiding it.” Plaintiff depo. at 215-216. When Lujan asked Plaintiff about it, Plaintiff replied “es nada.” Plaintiff went home, but Lujan then went to Plaintiff's truck and saw a bloody glove and realized the saw had cut through the work glove, which caused him to think the injury was more serious than Plaintiff had asserted. Plaintiff was called and told to return to work to seek medical attention. Id. at 220. Plaintiff and Lujan went to see a nurse, and then to a clinic, where they “put a Band-Aid on it.” Id. at 221. Plaintiff did not think he did anything wrong with regard to this incident. Id. Although policy requires that injuries be reported to a supervisor, Plaintiff was not disciplined because the policy requires a worker to report the injury by the end of the work day, and Plaintiff had done so, though Lujan did not feel Plaintiff did so in a forthcoming manner. CPS contends that Plaintiff's admitted improper use of the saw contributed to preparation of a performance improvement plan (“PIP”). Plaintiff notes that he was not issued a corrective action for the event.

         On May 8, 2015, Plaintiff was involved in another incident. Plaintiff was “booming” down in a bucket attached to a CPS Energy work vehicle when he brushed against a streetlight secondary cable, causing an electrical arc. Plaintiff depo. at 224. He testified it was 2 or 3 in the morning and dark and a little windy, and he was nervous and in a “very tight situation” with a primary cable above his head and a secondary cable underneath the bucket. Id. He said it would have been better to wait for daylight or until it was less windy, but it was an emergency situation. Id. at 225-226. He also testified that he did not get warnings from his spotter. Id. at 226. No. personal injuries or property damages resulted.

         Plaintiff did not report the incident to Michalek or Lujan, which Defendant contends was required. Plaintiff contends he immediately reported the incident to the more senior Journeyman on-site (Randy Brooks), who was his “lead man, ” and Brooks said he “would take care of” Plaintiff's report. Plaintiff depo. at 227. According to CPS, Brooks reported the incident the following Monday, May 11. Plaintiff asserts that CPS's assertion that Sanchez did not report the event to Michalek is wrong because Michalek testified that he was informed about the event by Brooks “in the morning.” Michalek depo at 55. This answer does not necessarily mean the next morning, however: “Q. Well, do you know for certain that it occurred in a day or days afterwards? A. I know that he told me in the morning.” Michalek also testified that he thought it was the next day, but that he did not recall what day it was. Plaintiff also contends that his “report regarding the Bucket Event ultimately made its way to Richard Lujan and Mark Michalek.” Docket no. 42-2 at 25. Further, Plaintiff notes that he was not issued a corrective action for the event.

         At some point between May 1 and May 8, Lujan met with Bonewell at a breakfast meeting to discuss Plaintiff's safety violations. Bonewell depo. at 23-26. CPS contends this meeting took place on May 6, between the saw and bucket incidents. Docket no. 39-1 at 10. But Plaintiff asserts that Bonewell included the bucket event in the events discussed, meaning that the meeting had to have taken place after the bucket event on May 8. CPS asserts that “[a]though discharge was discussed as an option in their meeting as well as over the days that followed, PIP was the option ultimately chosen.”

         On May 12, Lujan emailed Rick Maldonado, and cc'd Luschen and Michalek as follows:

Subject: PIP Action Plan
Below are our proposed recommendations for Randy Brooks and Gabriel Sanchez:
Randy Brooks
Issue a coaching memo outlining expectations and summarizing policies for reporting incidents.
Gabriel Sanchez:
1. Implement a Performance Improvement Plan (PIP) for Mr. Sanchez for a period of 6 Months.
2. Foreman (or designee) to perform 4 weekly safety audits on Mr. Sanchez. Manager to complete 1 weekly audit.
3. Document and track weekly 1-hour coaching sessions with Manager and Foreman.
4. Remove Mr. Sanchez from all unsupervised maintenance activities over the duration of this PIP.
5. Provide training to address areas of needed improvement related to safety events and hazard identification (bucket truck operation, using power tools, hazard identifications, other safety related topics).
6. Following successful completion of PIP involve Mr. Sanchez in ongoing UG Department safety teams and initiatives (Safety ambassador, Safety Day training, MEA training evaluation, lead JSAs, other).
Please also see the work plan to develop the PIP attached.

Def. Ex. 27; Pl. Ex. 27 . The PIP would start May 26, 2015 and would remove Plaintiff from call duty and require weekly tracking by Michalek. Id. The analysis section of the PIP states, “Mr. Sanchez is demonstrating a pattern of unsafe behavior.” Id. The background section listed the March 2014 flash incident, the March 12, 2015 burner incident, the May 1 saw/hand injury incident, and the May 8 bucket incident. Id.

         On May 19, Veronica Uriegas emailed a Critical Issues Activity Report for the week ending May 15 report to Lauro Garza, Zuniga, and others. It states,

Underground-Gabriel Sanchez (Cable Splicer Trainee)-management has expressed concern regarding the Safety concerns that have recently developed with Sanchez. Sanchez received a Reminder for Safety and on the same day of issuance, Sanchez told his management that he had cut his finger with Zaw Zaw earlier in the day. Sanchez did not report the incident immediately but did so by end of shift. In addition, there was another incident that was considered operation (near miss) and Sanchez was involved in that incident as well. Management would like to place Sanchez on a PIP for 6 months and or TERM.

         Veronica Zuniga testified that she wrote the summary, and that “management” referred to Lujan and Luschen. Zuniga depo. at 171-172.

         On May 26, Veronica Uriegas emailed a Critical Issues Activity Report for the week ending May 22. It repeats the language from the earlier report and then states,

UPDATE management drafted the PIP for Zuniga's review. Zuniga reviewed the PIP and asked management to elaborate on the expected changes. Management made changes and re-sent to Zuniga. Zuniga approved the changes and sent it back to management. Pending issuance.

Def. Ex. 28.

         Plaintiff notes that a PIP is not corrective action under the Corrective Action Policy. Plaintiff also contends that although Zuniga testified that a PIP is supposed to be reviewed by HR, the proposed PIP was not submitted to HR. There is conflicting evidence, insofar as evidence indicates that Zuniga saw and reviewed the PIP, but Zuniga testified at her deposition that she did not recall receiving the PIP for review, asking management to elaborate, or approving the changes. Zuniga depo. at 173-174.

         CPS contends that, in late May, before Lujan could finalize and issue the PIP, Plaintiff reported to him that he was afraid, was having trouble concentrating, and felt he needed help. Plaintiff does not assert a date for this conversation other than it was at some point prior to June 5, but agrees he told Lujan he was afraid, was having trouble concentrating on the job, and felt something was wrong with him, but he did not know what. Plaintiff testified that Lujan said he knew that Plaintiff had PTSD because his father, a police officer, had it and he “knew what that was about.” Plaintiff testified that Lujan said that what had happened to Plaintiff (the March 2014 flash event) was “something bad” and “he would have been worse if it had happened to him.” Lujan denies speaking with Plaintiff about his father or PTSD, but the Court must assume that he did.

         Lujan told Luschen about Plaintiff's expressed fear, and Luschen met with Bonewell, Garza, and Lewis to discuss the issue and next steps. Bonewell depo. at 26-29. According to CPS, Luschen and Garza still suggested the PIP, but Bonewell advocated his “actively caring” safety philosophy, and a collective decision was made to employ an actively caring plan in place of the previously contemplated PIP. Whether characterized as a PIP or an Actively Caring plan, the contours of the plan are mostly undisputed.

         It is undisputed that Plaintiff was mandated to attend six counseling sessions at third-party provider Deer Oaks through CPS's Employee Assistance Program (“EAP”). CPS's Corrective Action Policy includes a section on “Mandatory Referral to EAP.” It states that management may mandate the employee to an EAP provider for assistance and support when an employee's performance may be negatively impacted by matters personal in nature that could potentially improve with third party intervention. Def. Ex. 10. Plaintiff was also removed from call duty (when employees are called in for emergencies) and placed under foreman supervision while working. These latter two requirements are similar to what was contemplated in the PIP.

         There is conflicting testimony about who made what decisions and whether the proposed PIP plan was implemented. Although Plaintiff apparently believed he was placed on a PIP for six months and Bonewell testified that Plaintiff was placed on a PIP (though the components were supervision, removal from call duty, and EAP), CPS says Plaintiff was not on a PIP but on an “actively caring” plan. Bonewell testified that the EAP was mandated by HR, and he was only responsible for the decision to impose supervision on Plaintiff as part of his actively caring plan. Bonewell depo. at 38-42. But Zuniga testified that it was a management decision to send Plaintiff to EAP, specifying Luschen, and stating the decision was “made also with Fred Bonewell.” Zuniga depo. at 119-120.

         The referral prepared by Zuniga and signed by Michalek dated June 3 states “Management Directive. Mr. Sanchez has been observed having difficulty focusing on his work as a result of his last accident.” Lewis testified that she could not recall whose decision it was to mandate EAP but the conclusion was reached at the meeting. Garza testified that he was not involved in the decision to send Plaintiff to EAP. Nevertheless, as noted, there is general agreement that, whether a PIP or “actively caring, ” Plaintiff was to attend six counseling sessions (EAP) to provide support for him after he expressed fear of doing his job, and that safety concerns were addressed by removing Plaintiff from call duty and requiring supervised work.

         On June 5, 2015, Plaintiff met with Bonewell, Garza, Lujan, Luschen, Michalek, and Zuniga to discuss his placement on EAP, his removal from the call duty rotation, and the requirement that his foreman supervise all his work. Plaintiff testified that they told him they were going to work with him, and they were going to send him to get help at Deer Oaks. Plaintiff depo. at 236-238. Plaintiff testified that he had no objection to being taken off call duty or having to work under a supervisor. Id. at 241.

         The meeting agenda states that Bonewell and Garza would present/discuss the Actively Caring and Safety Readiness program, and that Luschen would cover “EAP Referral.” Def. Ex. 30. Plaintiff attended six counseling sessions with Callie Davis-Carr between June and August 2015. Plaintiff depo. at 243-244. Plaintiff told Davis-Carr that he was excited about serving on a new crew in the summer with younger co-workers who looked up to him. Id. at 245. Plaintiff testified that he did work some over the summer without a supervisor watching him, and only one foremen knew about his supervision requirement. He testified that he asked Lujan why all the foreman had not been informed of the requirement so they could watch him, and he would not have to tell them. Id. at 251-252, 261. During this conversation, he told Lujan he should be removed from the supervision requirement. Id. at 261-62.

According to an Executive Summary prepared by Defendant,
Sanchez completed Deer Oaks sessions on the following dates: June 30, July 7, July 14, July 29, August 4 and August 12. On Thursday, September 17, 2015 at the end of the day, Sanchez had a discussion with Richard Lujan explaining that he was complete with his counseling sessions and felt confident that he was able to perform his duties effectively and ready to return to normal duty (call duty, work without constant supervision). Lujan told him that he would consider his request and discuss with his Director. Sanchez was off the following day and returned to work on Monday, September 21 when the primary flash occurred.

Def. Ex. 31. Plaintiff does not recall having this conversation, though he does not deny that it happened. Plaintiff depo. at 260-262.

         According to Defendant, after Plaintiff informed Lujan that he was done with his EAP counseling sessions and wanted to be returned to call duty, Lujan discussed the issue with Luschen, and CPS agreed to Plaintiff's request. Bonewell confirmed that Plaintiff was released to normal duty in September. Plaintiff believed he was on probation for six months. Plaintiff depo. at 250, 260-261.

         There is some dispute about whether Plaintiff worked unsupervised on some occasions over the summer, and about how much overtime he worked. There is no dispute that Plaintiff had no safety incidents over the summer and that Plaintiff completed his counseling sessions (June 30 through August 12), though Plaintiff contends that no one at CPS followed up to see if Plaintiff attended or if they were effective. And there is some dispute about the circumstances under which Plaintiff was to work on September 21, 2015 (whether he was released to full duty).

         On September 21, 2015, Plaintiff caused another flash incident that severely injured him. On that day, Plaintiff and his crew were to identify and cut cables in three designated manholes. The foreman was Lonnie Rankin. David Breiten was the apprentice journeyman, and Oscar Gonzales was a civil crew laborer. Plaintiff depo. at 263. The workers went through a Safety Check List, and Plaintiff signed it. Id. at 263. They also reviewed a tailboard form with safety reminders and required PPE, including hard hat, flame retardant garments, eye protection, rubber gloves, work gloves, and foot protection. Id. at 265-266.[3] Plaintiff marked the cables to be cut in all three manholes in red paint. He correctly cut the first two cables, but he cut the wrong cable in the third manhole, causing a flash that severely burned him.

         Plaintiff contends that two utility workers were teasing him that morning, which caused him to cut the wrong cable. Plaintiff depo. at 271-73. He testified that when he was coming out of a manhole before cutting any cables, the utility workers “were on the fourth manhole that is not mentioned, and they started making noises like an explosion. Going like that (indicating) to me.” Id. at 272. He testified that they said “poof” and “Make sure you don't cut the wrong cable and blow up.” Id. Plaintiff testified the he “went to Oscar Gonzales and I told him that these guys didn't know what was going on with me, that if I made a phone call they could get in trouble, to tell them to stop. ...

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