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Strife v. Westex Security Services, Inc.

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

July 24, 2019

JONATHON STRIFE, Plaintiff,
v.
WESTEX SECURITY SERVICES, INC., Defendant.

          MEMORANDUM AND OPINION

          Lee H. Rosenthal Chief United States District Judge

         Jonathon Strife sued Westex Security Services, Inc., his former employer, asserting disability discrimination and retaliation claims under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12112(a). After discovery, Westex moved for summary judgment, arguing that the record evidence does not support an inference that Strife was disabled or that he engaged in an activity protected by the ADA. Strife has not responded.

         After a careful review of the complaint, the motion, the record evidence, and the applicable law, the court grants Westex's summary judgment motion. (Docket Entry No. 17). Westex's motion to dismiss is denied as moot. (Docket Entry No. 16). Final judgment is separately entered. The reasons for these rulings are set out in detail below.

         I. Background

         Westex is a security services company that provides “unarmed, company trained and supervised, security personnel” for client protection. (Docket Entry No. 17-1 at 1). Westex's security guards perform tasks based on client requirements, including “standing and roving patrols, manning client security centers, electronic surveillance, security audits and security monitoring.” (Id.). The company's disciplinary policy states that “[s]leeping during working hours or while on duty” will result in “[i]mmediate [d]ischarge.” (Id. at 5).

         Strife worked for Westex as a security operations center supervisor from August 17, 2015, to December 16, 2015. (Id. at 2). Strife was assigned to CenterPoint Energy's Security Operations Center, where he monitored CenterPoint's security operations and was “responsible for the direct supervision of the Westex security personnel working his shift.” (Id.). Strife was “under constant oversight by [CenterPoint's] own security” staff. (Id.).

         On December 6, 2015, a Sunday, Strife fell at home while off duty, cutting his chin. (Docket Entry No. 17-2 at 1). He went to the emergency room and received stitches to close the wound. (Id.). Strife went to work the next day, December 7, and did not tell his supervisor, Tom Behne, about the accident. (Docket Entry No. 1 at 5).

         On December 8, Behne saw Strife's stiches and reported the injury to Cassidy Rizik, Westex's human resources manager, who told Strife to obtain a “doctor's note from [his] emergency visit.” (Docket Entry No. 17-2 at 1, 5). Strife did so and gave Rizik an “Excuse from Work or School” slip stating that he could return “to full physical activity as of” December 6, 2015. (Id. at 7).

         Strife concedes that he “unintentionally nodded off” at his post on December 11, 2015. (Docket Entry No. 1 at 6; Docket Entry No. 17-1 at 2). Behne saw Strife sleeping at work on December 12. (Docket Entry No. 17-1 at 2). On December 16, Westex fired Strife for violating the disciplinary policy that forbid sleeping on duty and made it a terminable offense. (Id.). On December 22, Westex received notice that Strife had applied for unemployment benefits on December 18. (Docket Entry No. 17-2 at 10).

         Strife sued Westex in September 2018, alleging that Westex fired him “for an action associated with a report of disability, perception of disability, or a disability, ” in violation of the ADA. (Docket Entry No. 1 at 6). Strife also alleges that Westex unlawfully retaliated against him by disputing his unemployment-compensation claim. (Id. at 7). Westex has moved for summary judgment, arguing that the record evidence does not show that: Strife had a disability or was regarded by Westex as having a disability; or that Strife engaged in an ADA-protected activity. (Docket Entry No. 16, 17). Strife asked the court for two extensions to respond to Westex's motions. (Docket Entry No. 18, 20). The court granted both requests and required Strife to respond by July 19, 2019. (Docket Entry No. 19, 21). He did not respond.

         II. The Legal Standard

         “Summary judgment is appropriate only when ‘the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'” Shepherd on Behalf of Estate of Shepherd v. City of Shreveport, 920 F.3d 278, 282-83 (5th Cir. 2019) (quoting Fed.R.Civ.P. 56(a)). “A material fact is one that might affect the outcome of the suit under governing law, ” and “a fact issue is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Renwick v. PNK Lake Charles, L.L.C., 901 F.3d 605, 611 (5th Cir. 2018) (quotations and citations omitted). The moving party “always bears the initial responsibility of informing the district court of the basis for its motion, ” and identifying the record evidence “which it believes demonstrate[s] the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

         “Where the non-movant bears the burden of proof at trial, ‘the movant may merely point to the absence of evidence and thereby shift to the non-movant the burden of demonstrating that there is an issue of material fact warranting trial.'” Kim v. Hospira, Inc., 709 Fed.Appx. 287, 288 (5th Cir. 2018) (alteration omitted) (quoting Nola Spice Designs, L.L.C. v. Haydel Enters., Inc., 783 F.3d 527, 536 (5th Cir. 2015)). The moving party must demonstrate the absence of a genuine issue of material fact, but it need not negate the elements of the nonmovant's case. Austin v. Kroger Tex., L.P., 864 F.3d 326, 335 (5th Cir. 2017). “If the moving party fails to meet [its] initial burden, the motion must be denied, regardless of the nonmovant's response.” Pioneer Expl., L.L.C. v. Steadfast Ins. Co., 767 F.3d 503, 511 (5th Cir. 2014) (quoting Kee v. City of Rowlett, 247 F.3d 206, 210 (5th Cir. 2001)).

         “When the moving party has met its Rule 56(c) burden, the nonmoving party cannot survive a summary judgment motion by resting on the mere allegations of its pleadings.” Duffie v. United States, 600 F.3d 362, 371 (5th Cir. 2010). The nonmovant must identify specific evidence in the record and articulate “the precise manner in which” that evidence supports that party's claim. Willis v. Cleco Corp., 749 F.3d 314, 317 (5th Cir. 2014) (quoting Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994)). “A party cannot defeat summary judgment with conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence.” Lamb v. Ashford Place Apartments L.L.C., 914 F.3d 940, 946 (5th Cir. 2019) (quotation omitted). “A failure on the part of the nonmoving party to offer proof concerning an ...


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