United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
F. ATLAS, SENIOR UNITEJ2 STATES DISTRICT JUDGE.
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.
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.
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.
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.
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.
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.
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.
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.
APPLICABLE LEGAL STANDARDS
Summary Judgment Standard
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.
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 ...