United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
BARBARA M. G. LYNN CHIEF JUDGE
age and disability discrimination case, Plaintiff Peter
Curley claims that he was illegally fired because of his age
and an alleged disability. Defendant moves for summary
judgment on Plaintiff's Age Discrimination in Employment
Act (“ADEA”) and Americans with Disabilities Act
(“ADA”) claims. The Court finds that summary
judgment should be granted for Defendant.
2014, Plaintiff was hired as the Executive Chef at a senior
living facility. [ECF No. 20-1 at App.17-19; App.62].
Non-party Tradition Management, LLC was responsible for
management of the senior living facility, and is a subsidiary
of Defendant Tradition Senior Living, LP (“TSL”).
[Id. at App.113]. The “Employee
Acknowledgement” form, signed by Plaintiff at his
hiring, identifies Tradition Management as his
“Worksite Employer, ” and Offsite HR, LLC as his
“alternative employer for Worker's Compensation
benefits.” [Id. at App.59; App.62]. The
“Team Member Handbook” that Plaintiff received
states: “You are an employee of Tradition Management,
LLC, a Texas limited liability company, and a subsidiary of
Tradition Senior Living, LP.” [Id. at App.68].
Plaintiff was 65 years old when he was hired. [Id.
at App.17; App.20].
was employed at the senior living facility until he was fired
on June 23, 2017. [Id. at App.181]. Plaintiff
received written performance reviews in August 2014 and July
2015. [Id. at App.169-71; App.172-74]. These reviews
were generally positive, but noted that Plaintiff needed to
improve his performance of certain administrative aspects of
his job, such as producing accurate menus, correctly coding
items for invoices, and fostering good relationships with
team members. [Id. at App.169-70; App.172-174].
March 2017, Tradition Management hired a new Food and
Beverage Director, Robin Murphy, who became Plaintiff's
supervisor. [Id. at App.178]. Murphy declares that
he initially noted that Plaintiff performed the culinary
aspects of his job well and that he was well liked by the
residents of the facility. [Id. at App.179].
However, Murphy also declares that he later determined that
Plaintiff's performance of the administrative functions
of his job was lacking. [Id.]. On May 17, 2017,
Murphy met with Plaintiff to discuss these shortcomings.
[Id.]. The content of the discussion was
memorialized in an “Employee Warning Notice.”
[Id. at App. 183].
Warning Notice noted that Plaintiff had not produced a new
series of “seasonal menus” as directed, was not
properly coding invoices, was not controlling overtime or
making required edits to team members' time sheets, and
was generally failing to provide strong leadership of the
kitchen staff. [Id.]. At their meeting, Murphy
informed Plaintiff that he would be fired if he did not
correct these deficiencies. [Id. at App.180].
May 2017, Plaintiff developed knee pain, caused by arthritis,
which caused him to walk with a limp. [Id. at
App.25-26]. Plaintiff did not use a cane or walker, but wore
a knee brace at times. [Id.]. Plaintiff testified
that his knee condition did not prevent him from performing
his job, and that it does not now prevent him from performing
his new job as a restaurant chef. [Id. at
App.28-29]. Murphy acknowledged that he noticed
Plaintiff's limp and inquired about it. [Id. at
App.181]. Plaintiff responded that he was “fine”
and suffering from “wear and tear.”
[Id.; see also id. at App.29]. Murphy
testified that he did not believe Plaintiff's limp
impacted Plaintiff's work in any way. [Id. at
App.181-82]. Jonathan Pearlman, the manager of Tradition
Management and the Founder and CEO of TSL, who eventually
fired Plaintiff, testified that he was not aware that
Plaintiff walked with a limp. [Id. at App.112;
App.116; ECF No. 26 at Resp. Appx.51]. Plaintiff, however,
presented evidence that Pearlman was present when Plaintiff
was limping. [ECF No. 26 at Resp.Appx.43].
continued to monitor Plaintiff's performance, but, in
Murphy's estimation, it did not improve. [ECF No. 20-3 at
App.181]. Plaintiff concedes that he did not produce the new
“seasonal menus” that Murphy requested.
[Id. at App.44-45]. Murphy recommended to Pearlman
that Plaintiff be terminated. [Id. at App.115-16;
App.181]. Pearlman accepted the recommendation and Plaintiff
was terminated on June 23, 2017, at the age of 67.
[Id. at App.36, App.181]. Plaintiff was offered a
severance agreement which noted that it was “made and
entered into by and between [TSL] and [Plaintiff].”
[ECF No. 26 at Resp. App.44]. Plaintiff declined to sign the
severance agreement. [ECF No. 20-1 at App.181].
initially sued Defendant in state court, alleging violations
of the Texas Labor Code. See Curley v. Tradition Senior
Living LP, No. DC-17-09309 (44th Dist. Ct. Dallas
County, Tex. July 29, 2017). Plaintiff nonsuited that action
without prejudice on February 19, 2018. Id.
filed this action on April 16, 2018. [ECF No. 1]. He brings
claims for violations of the ADA and ADEA, and for a
declaratory judgment prohibiting Defendant from engaging in
unlawful employment practices and ordering that Plaintiff be
reinstated with back pay. [ECF No. 1 at 3-4]. Defendant moved
for summary judgment and the Court held a hearing on the
Motion on April 16, 2019. [ECF No. 33].