United States District Court, W.D. Texas, San Antonio Division
ORDER ON MOTION FOR SUMMARY JUDGMENT
RODRIGUEZ, UNITED STATES DISTRICT JUDGE
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
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.
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.
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.
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.
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
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.
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.
1, 2015, Plaintiff received the Reminder 1 in person from
Lujan. Def. Ex. 16.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.
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.
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.
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.
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.
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
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
Issue a coaching memo outlining expectations and summarizing
policies for reporting incidents.
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.
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.
Zuniga testified that she wrote the summary, and that
“management” referred to Lujan and Luschen.
Zuniga depo. at 171-172.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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. 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.
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. ...