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Austgen v. Allied Barton Security Services, LLC

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

July 30, 2019

CHAD AUSTGEN, Plaintiff,
v.
ALLIED BARTON SECURITY SERVICES, LLC, n/k/a Allied Universal, Defendant.

          MEMORANDUM AND ORDER

          NANCY F. ATLAS, SENIOR UNITEJ2 STATES DISTRICT JUDGE.

         This Americans With Disabilities Act (“ADA”) case is before the Court on the Motion for Summary Judgment (“Motion”) [Doc. # 28] filed by Defendant Allied Barton Security Services, LLC n/k/a Allied Universal (“Allied”), to which Plaintiff Chad Austgen filed a Response [Doc. # 33], and Defendant filed a Reply [Doc. # 34]. Having reviewed the full record and the applicable legal authorities, the Court grants the Motion.

         I. BACKGROUND

         In 2012, Plaintiff was discharged from the United States Marine Corps due to a back injury he sustained while in Iraq. The back injury was not caused by a specific event, but was caused when “accumulated stress from carrying combat loads compressed several of the discs” in Plaintiff's lower back. See Deposition of Chad Austin, p. 15.

         In January 2016, Plaintiff began working for Allied as a Licensed Security Officer (“Security Officer”) at the Port of Houston. The Security Officers working for Allied at the Port of Houston provide security at various entrance gates or “posts” where they are responsible for checking individuals and vehicles seeking to enter the Port of Houston. The Security Officers must be able “to perform repetitive motion bending, squatting, reaching and twisting, etc. for up to and over 8 hours.” See Security Officer Responsibilities, Tab 12 to Motion. Each Security Officer at the Port of Houston was required to be available to work at any post if the need arose. See Austgen Depo., p. 40; Affidavit of Katherine Alyea, Tab 11 to Motion, ¶ 7.

         In early September 2016, Plaintiff reported an aggravation of his prior back injury, which he attributed to the “extensive daily climbing in and out of and under commercial vehicles” in connection with his work for Allied. See Declaration of Chad Austgen, Exh. to Response, ¶ 6. Plaintiff notified his account manager of his “disability and requested accommodation.” See Plaintiff's Court Ordered Disclosures, Tab 7 to Motion, p. 2. Plaintiff “made the recommendation that [he] be switched to a different post as a reasonable accommodation.” See Austgen Decl., ¶ 7.

         After Plaintiff notified Allied of his disability, which he claimed was seriously aggravated by his work at the Port of Houston, Allied sent Plaintiff home until he was cleared by his doctor to return to work. Allied gave Plaintiff a “Fitness for Duty Form” (“Form”) on which his doctor was asked to identify Plaintiff's specific physical restrictions. Plaintiff returned the Form on September 23, 2016. At that time, the Form did not identify any physical restrictions and, instead, identified particular locations at the Port of Houston where Plaintiff's doctor believed Plaintiff could work. See Fitness for Duty Form, Exh. to Response [Doc. # 33-2], ECF p. 3. Allied's representative, Terri Hinojosa, advised Plaintiff that the Form did not satisfy Allied's requirements because it did not identify Plaintiff's physical limitations. Plaintiff thereafter obtained a partial release to work from his physician, which stated that Plaintiff “has restrictions of no prolonged climbing, bending, or twisting.” See Release to Return to Work, Tab 16 to Motion. Plaintiff delivered the second Fitness for Duty Form to Allied on September 26, 2016.

         The next day, September 27, 2016, an Allied Human Resources representative, Katherine Alyea, communicated with Plaintiff regarding potential worksites other than the Port of Houston that would accommodate the physical limitations identified by Plaintiff's doctor. The next day, Plaintiff advised Ms. Alyea that he would like to accept the opportunity to interview for a new position. See Austgen Deposition, pp. 95-96. On September 29, 2016, Plaintiff interviewed for an Allied position at Phillips 66, and he began working at that facility shortly thereafter.

         Although he had not worked as a supervisor at the Port of Houston, Plaintiff was classified as a “Site Supervisor” at Phillips 66. This resulted in Plaintiff receiving the same wage and benefits that he had been receiving as a “Security Officer” at the Port of Houston. Plaintiff did not complain about the transfer to the Phillips 66 facility and, indeed, he later applied for and accepted a full-time position working for Phillips 66 directly. See Austgen Depo., p. 34.

         Plaintiff filed this lawsuit on March 26, 2018, and filed an Amended Complaint [Doc. # 14] on October 5, 2018. Plaintiff alleges that Allied failed to provide him with a reasonable accommodation. See Amended Complaint, ¶ 4.11. Plaintiff alleges also that Allied retaliated against him for engaging in protected activity under the ADA. See id., ¶ 4.13. After the close of discovery, Allied moved for summary judgment. The Motion has been fully briefed and is now ripe for decision.

         II. APPLICABLE LEGAL STANDARDS

         A. Summary Judgment Standard

         Rule 56 of the Federal Rules of Civil Procedure provides for the entry of summary judgment against a plaintiff who fails to make a sufficient showing of the existence of an element essential to his case and on which he will bear the burden at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Curtis v. Anthony, 710 F.3d 587, 594 (5th Cir. 2013); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). Summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Celotex, 477 U.S. at 322-23; Curtis, 710 F.3d at 594.

         For summary judgment, the initial burden falls on the movant to identify areas essential to the non-movant's claim in which there is an “absence of a genuine issue of material fact.” ACE Am. Ins. Co. v. Freeport Welding & Fabricating, Inc., 699 F.3d 832, 839 (5th Cir. 2012). The moving party, however, “need not negate the elements of the nonmovant's case.” Coastal Agric. Supply, Inc. v. JP Morgan Chase Bank, N.A., 759 F.3d 498, 505 (5th Cir. 2014) (quoting Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005)). The moving party may meet its burden by pointing out “the absence of evidence supporting the nonmoving ...


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