United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
H. Miller, United States District Judge.
before the court is defendant Accenture LLP’s
(“Accenture”) motion for summary judgment (Dkt.
30), plaintiff Robert Lee’s response (Dkt. 31), and
Accenture’s reply (Dkt. 32). Having considered the
pleadings, evidentiary record, and applicable law, the court
finds that Accenture’s motion (Dkt. 30) should be
outset the court notes that Lee has withdrawn both his
retaliation and breach of contract claims. Dkt. 31 at 1 n.1.
Accordingly, this case solely concerns whether or not
Accenture discriminated against Lee on the basis of his
HIV-positive status when it failed to rehire him following
his termination from the company. Dkt. 31 at 2.
worked for Accenture as an accountant from September 23, 2015
until October 11, 2016. Dkt. 30 at 4; Dkt. 31 at 2, 4. In
June of 2016, Lee disclosed to Peggy Krendl, Managing
Director of Accenture’s resource group, that he was
HIV-positive and requested an accommodation for a
“fulltime, regular work schedule (normal and
predictable hours).” Dkt. 30 at 16; see also
Dkt. 31 at 3. On February 7, 2017, approximately four
months after his employment with Accenture was terminated,
Lee applied for the position of Capability Network Direct Tax
Manager within Accenture. Dkt. 30 at 12; Dkt. 31 at 4. During
the hiring process, Tom Browne, a Principal Director in
Accenture’s Capability Network, removed Lee from
consideration for the position. Dkt. 30 at 12–13; Dkt.
31 at 5. Accenture subsequently hired Katherine Jackson for
the position. Dkt. 30 at 13; Dkt. 31 at 5. Lee alleges that
Accenture “failed to hire him-or even consider him-for
the Tax Manager position due to Lee’s
disability.” Dkt. 31 at 6.
judgment is appropriate if the moving party can show that
“there is no genuine dispute as to any material fact
and the movant is entitled to a judgment as a matter of
law.” Fed.R.Civ.P. 56(a). “A fact is material if
it could affect the outcome of the lawsuit, and a dispute
about a material fact is genuine if the evidence is such that
a reasonable jury could return a verdict for the non-moving
party.” McInnis v. Alamo Cmty. Coll. Dist.,
207 F.3d 276, 279 (5th Cir. 2000) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986)). The court “views ‘all facts
and evidence in the light most favorable to the non-moving
party.’” Moss v. Harris Cty. Constable
Precinct One, 851 F.3d 413, 417 (5th Cir. 2017) (quoting
Juino v. Livingston Par. Fire Dist. No. 5, 717 F.3d
431, 433 (5th Cir. 2013)). “However, where the
non-movant is the party who would have the burden of proof at
trial, that party must point to evidence supporting its claim
that raises a genuine issue of material fact.”
Id. (citing Tran Enters., LLC v. DHL Exp. (USA),
Inc., 627 F.3d 1004, 1010 (5th Cir. 2010)).
establish a prima facie case of discrimination under the
Americans with Disabilities Act (“ADA”), a
plaintiff must show that: “(1) He is disabled or is
regarded as disabled; (2) he is qualified for the job; (3) he
was subjected to an adverse employment action on account of
his disability; and (4) he was replaced by or treated less
favorably than non-disabled employees.”
McInnis, 207 F.3d at 279–80.
argues that Lee cannot establish a prima facie case of
disability discrimination because “there is no evidence
that Tom Browne-the decisionmaker who rejected Lee’s
application for rehire-knew that Lee was HIV-positive.”
Dkt. 30 at 15; see also Dkt. 32 at 3. Lee does not
dispute that Tom Browne was the one responsible for making
the adverse employment decision against Lee. Nor does Lee
point to any evidence suggesting that Browne was aware of
Lee’s accommodation request and/or HIV status. Although
Lee disclosed his HIV status on his employment application
(Dkt. 30-3 at 36–37), the evidence shows that Browne
never saw the form on which Lee made this disclosure. Dkt.
30-7 at 10. Indeed, Lee admits that his belief that Tom
Browne knew about his accommodation request is just that-his
belief. Dkt. 30-3 at 36–37. Lee points to no evidence
to refute Browne’s lack of knowledge of his HIV status.
“We do not . . . in the absence of any proof,
assume that the nonmoving party could or would prove the
necessary facts.” Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (emphasis in
original) (citing Lujan v. Nat’l Wildlife
Fed’n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111
L.Ed.2d 695 (1990)). Accordingly, Lee cannot show that
“he was subjected to an adverse employment action
on account of his disability” McInnis, 207
F.3d at 279-80 (emphasis added).
does not dispute this fact in his response, instead focusing
his arguments on why Browne’s decision was pretextual,
arguing as if he had already established a prima facie case
and shifted the burden to Accenture. Dkt. 31 at 7-10. But
whether Browne knew of Lee’s HIV status is a material
fact required to establish the third prong of a disability
discrimination claim. See, e.g., Adeleke v. Dallas Area
Rapid Transit, 487 F. App’x 901, 903 (5th Cir.
2012) (per curiam) (finding that the plaintiff “did not
satisfy his burden of demonstrating that there was a genuine
dispute as to a material fact regarding whether [his
employer] discriminated against him in its hiring
decisions” where the employer “offered summary
judgment evidence that none of the decisionmakers knew or
believed that [plaintiff] suffered from a disability, and
[plaintiff] failed to present competent summary judgment
evidence that [the decisionmakers] knew [of his
disability]”). Because Lee does not point to evidence
showing that Browne’s ignorance of Lee’s
disability at the time of the adverse employment decision is
in dispute, Accenture is entitled to judgment as a matter of
law. Moss, 851 F.3d at 417.
reasons stated above, Accenture’s motion for summary