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Curley v. Tradition Senior Living L.P.

United States District Court, N.D. Texas, Dallas Division

June 6, 2019

PETER CURLEY, Plaintiff,



         In this 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.

         I. Background

         A. Factual Background

         In June 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].

         Plaintiff 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].

         In 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].

         The 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].

         Also in 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].

         Murphy 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].

         B. Procedural History

         Plaintiff 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.

         Plaintiff 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].

         II. ...

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