United States District Court, W.D. Texas, Austin Division
PITMAN UNITED STATES DISTRICT JUDGE
the Court are cross-motions for summary judgment filed by
Plaintiff Celina Cruz (“Cruz”), (Dkt. 36), and
Defendant R2Sonic, LLC (“R2Sonic”), (Dkt. 35).
Also before the Court is R2Sonic’s motion to strike,
which pertains to portions of Cruz’s summary judgment
evidence and briefing. (Dkt. 40). Having considered the
parties’ arguments, the evidence, and the relevant law,
the Court will grant in part R2Sonic’s motion to
strike, deny its motion for summary judgment, and grant in
part Cruz’s motion for summary judgment.
a disability discrimination case. Cruz started at ¶
2Sonic as a temp in February 2015. (Cruz Dep., Dkt. 35-1, at
51:24–25). She was hired to be the small
company’s operations coordinator, which involves tasks
like documenting shipping documents and invoices, scheduling
and receiving shipments, order fulfillment, kitting products,
inventory management, and answering phones. (Lai Decl., Dkt.
35-2, ¶ 3). Later that year she was hired full-time, and
the following April she was promoted to Operations
Coordinator II, which entailed a $4-per-hour raise but did
not change her responsibilities. (Cruz Decl., Dkt. 36-1,
¶ 3; Cruz Dep., Dkt. 35-1, at 52:9–53:1). She
remained in that position until being fired in April 2017.
(Lai Decl., Dkt. 35-2, ¶ 2).
January 2017, R2Sonic organized a voluntary trip to
Yellowstone for its employees. (Cruz Decl., Dkt. 36-1, ¶
5; Lai Decl., Dkt. 35-2, ¶ 4). Cruz went snowmobiling on
that trip and crashed, injuring her head and shoulder. (Cruz
Decl., Dkt. 36-1, ¶ 6). When she returned to Austin on
January 23, she visited her primary physician when she
returned to Austin, he diagnosed her injury as a concussion
and recommended that she stay home from work for about one
week. (Cruz Decl., Dkt. 36-1, ¶¶ 8–9).
R2Sonic accommodated her medical absence. (Lai Decl., Dkt.
35-2, ¶ 5). Cruz’s doctor approved her to return
to work on February 6 but limited her to working four hours
per day and lifting less than 20 pounds. (Cruz Decl., Dkt.
36-1, ¶¶ 11–12; Lai Decl., Dkt. 35-2, ¶
5). R2Sonic likewise accommodated those restrictions. (Lai
Decl., Dkt. 35-2, ¶ 5). Cruz then returned to work
full-time on February 13 with restrictions against working
overtime or lifting over 30 pounds. (Cruz Decl., Dkt. 36-1,
¶ 12; Cruz Dep., Dkt. 35-1, at 92:3–22; R2 Mot.
Summ. J., Dkt. 35, at 5). Those two restrictions remained in
place until Cruz was fired on April 20. (Lai Decl., Dkt.
35-2, ¶ 7).
parties dispute the reason that Cruz was fired. According to
R2Sonic, Cruz had been inefficient for almost as long as she
had been working there. (Bonneau Decl., Dkt. 35-3,
¶¶ 6–12). R2Sonic’s CFO, Yating Lai
(“Lai”) testified that Cruz’s post-injury
performance had nothing to do with her termination; she was
fired “for pre-January 20th performance only.”
(Lai Dep., Dkt. 38-4, at 67:11–22). Cruz argues that
not only is the timing suspicious but that, for a variety of
other reasons as well, R2Sonic’s stated reason is
unworthy of credence. (Cruz Resp., Dkt. 38, at 15–16).
parties also dispute whether Cruz was given all of the
accommodations she requested after Cruz returned to work
full-time. On March 6, Cruz’s doctor recommended that
she be given 15-minute breaks every one to two hours. (Lai
Decl., Dkt. 35-2, ¶ 6). R2Sonic accommodated that
request. (Id.). But Cruz says that she requested
various other accommodations-such as the temporary
reassignment of certain tasks to other employees or help with
physical tasks-that her supervisor Lori Bonneau
(“Bonneau”) denied. (Cruz Decl., Dkt. 36-1,
¶ 15). In fact, Cruz says in her declaration that
R2Sonic took away assistance that she had received
before her injury, such as help from another employee
answering phones. (Id. ¶ 17). Ultimately, Cruz
believes that R2Sonic “never engaged in a
process” to discuss potential accommodations, forcing
her to routinely work overtime in violation of her
doctor’s recommendation. (Id. ¶¶
18–20). R2Sonic responds that Bonneau told Cruz not to
work overtime and that Cruz did so on her own accord.
(Bonneau Decl., Dkt. 35-3, ¶ 17).
asserts several causes of action against R2Sonic. She alleges
that the company violated the Americans With Disabilities
Act, 42 U.S.C. 12101 et seq. (“ADA”),
and the Texas Commission on Human Rights Act, Tex. Lab. Code
§ 21.001 et seq. (“TCHRA”), in
three ways: first, by discriminating against her on the basis
of a disability; second, by refusing to accommodate her
disability; and third, by retaliating against her for seeking
accommodations for her disability. (Orig. Pet., Dkt. 1-3, at
3–4). R2Sonic seeks summary judgment in its favor as to
each of Cruz’s claims. (R2 Mot. Summ. J., Dkt. 35, at
1–2, 7). Cruz, meanwhile, seeks only partial summary
judgment-she asks the Court to grant her judgment as a matter
of law on the issues of whether she was disabled and whether
R2Sonic failed to make reasonable accommodations for her
disability. (Cruz Mot. Summ. J., Dkt. 36, at 6–16, 20).
She also asks for summary judgment on each of R2Sonic’s
affirmative defenses. (Id. at 17–20). Finally,
R2Sonic filed a motion to strike portions of Cruz’s
declaration and her motion. (Mot. Strike, Dkt. 40).
judgment is appropriate when there is no genuine dispute as
to any material fact and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex
Corp. v. Catrett, 477 U.S. 317, 323–25 (1986). A
dispute regarding a material fact is “genuine” if
the evidence is such that a reasonable jury could return a
verdict in favor of the nonmoving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A
fact is material if its resolution in favor of one party
might affect the outcome of the lawsuit under governing
law.” Sossamon v. Lone Star State of Tex., 560
F.3d 316, 326 (5th Cir. 2009) (quotations and footnote
omitted). When reviewing a summary judgment motion,
“[t]he evidence of the nonmovant is to be believed, and
all justifiable inferences are to be drawn in his
favor.” Anderson, 477 U.S. at 255. Further, a
court may not make credibility determinations or weigh the
evidence in ruling on a motion for summary judgment.
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 150 (2000).
moving party does not bear the ultimate burden of proof,
after it has made an initial showing that there is no
evidence to support the nonmoving party’s case, the
party opposing the motion must come forward with competent
summary judgment evidence of the existence of a genuine fact
issue. Matsushita Elec. Indus. Co. v. Zenith Radio,
475 U.S. 574, 587 (1986). When the movant bears the burden of
proof, she must establish all the essential elements of her
claim that warrant judgment in her favor. See Chaplin v.
NationsCredit Corp., 307 F.3d 368, 372 (5th Cir. 2002).
In such cases, the burden then shifts to the nonmoving party
to establish the existence of a genuine issue for trial.
Austin v. Kroger Tex., L.P., 864 F.3d 326, 335 (5th
assertions, improbable inferences, and unsupported
speculation are not competent summary judgment evidence, and
thus are insufficient to defeat a motion for summary
judgment. Turner v. Baylor Richardson Med. Ctr., 476
F.3d 337, 343 (5th Cir. 2007). Furthermore, the nonmovant is
required to identify specific evidence in the record and to
articulate the precise manner in which that evidence supports
his claim. Adams v. Travelers Indem. Co. of Conn.,
465 F.3d 156, 164 (5th Cir. 2006). Rule 56 does not impose a
duty on the court to “sift through the record in search
of evidence” to support the nonmovant’s
opposition to the motion for summary judgment. Id.
After the nonmovant has been given the opportunity to raise a
genuine factual issue, if no reasonable juror could find for
the nonmovant, summary judgment will be granted. Miss.
River Basin All. v. Westphal, 230 F.3d 170, 175 (5th
Cir. 2000). Cross-motions for summary judgment “must be
considered separately, as each movant bears the burden of
establishing that no genuine issue of material fact exists
and that it is entitled to judgment as a matter of
law.” Shaw Constructors v. ICF Kaiser Eng’rs,
Inc., 395 F.3d 533, 538–39 (5th Cir. 2004).
R2Sonic’s Motion to Strike
filed a declaration in support of her partial motion for
summary judgment. (Dkt. 36-1). R2Sonic asks the Court to
strike Paragraphs 4, 18, 19, 20, 21, 22, 23, and 24 from her
declaration. (Mot. Strike, Dkt. 40, at
2–6). According to R2Sonic, each of those
paragraphs should be struck under the so-called “sham
affidavit” rule because they are inherently
inconsistent with deposition testimony she gave before making
the declaration. (Id. at 4). R2Sonic also asks the
Court to strike Part V of Cruz’s partial motion for
summary judgment because she used a table to present her
arguments against R2Sonic’s affirmative defenses.
may not “defeat a motion for summary judgment using an
affidavit that impeaches, without explanation, sworn
testimony.” S.W.S. Erectors, Inc. v. Infax,
Inc., 72 F.3d 489, 495 (5th Cir. 1996) (citing
Thurman v. Sears, Roebuck & Co., 952 F.2d 128,
137 n.23 (5th Cir. 1992)). Accordingly, a nonmoving party may
not submit such an affidavit simply to “manufacture a
genuine issue of material fact.” Doe ex rel. Doe v.
Dall. Indep. Sch. Dist., 220 F.3d 380, 386 (5th Cir.
2000). This rule, dubbed the “sham-affidavit rule,
” is not so inflexibly applied that any affidavit
contradicting prior deposition testimony will be
automatically disregarded. Axxiom Mfg., Inc. v. McCoy
Invs., Inc., 846 F.Supp.2d 732, 750 (S.D. Tex. 2012).
Rather, courts should consider whether there are persuasive
reasons for the change in the affiant’s testimony.
Id. (citing EBC, Inc. v. Clark Bldg. Sys.,
Inc., 618 F.3d 253, 270 (3d Cir. 2010)). Indeed, the
rule is “‘applied sparingly’ and may be
invoked only where there is ‘some inherent
inconsistency between an affidavit and a
deposition.’” Eure v. Sage Corp., 61
F.Supp.3d 651, 658 (W.D. Tex. 2014) (quoting Axxiom
Mfg., 846 F.Supp.2d at 749–50).
Paragraphs 18 and 20, Cruz avers that R2Sonic did not
accommodate her request for help so that she would not have
to work overtime. (Cruz Decl., Dkt. 38-1, ¶¶ 18,
20). R2Sonic argues that these averments contradict her
deposition testimony that she could not recall anyone at
¶ 2Sonic requiring her “to do anything at work
that was outside of the restrictions” given by her
doctor. (Cruz Dep., Dkt. 35-1, at 89:7–10). Cruz
responds, and the Court agrees, that these two statements are
not contradictory. The relevant deposition testimony was made
in response to questions about restrictions given by her
doctor in a note dated February 6, 2017, which limited her to
four hours of work per day and lifting less than 20 pounds.
(Cruz Dep., Dkt. 35-1, at 88:23–89:10; Resp. Mot.
Strike, Dkt. 43, at 4). Her statements in Paragraphs 18 and
20, meanwhile, pertain to requests for accommodations made
after returning to work full-time. (Cruz Decl., Dkt. 38-1,
¶¶ 18, 20). The Court will not strike these
portions of Cruz’s declaration.
Paragraph 19, Cruz avers that R2Sonic “never engaged in
a process . . . to discuss other potential
accommodations” for her. (Id. ¶¶
19). R2Sonic argues that this statement contradicts her
deposition testimony that R2Sonic met with her on March 31,
2017, to discuss additional restrictions. (Mot. Strike, Dkt.
40, at 5 (citing Cruz Dep., Dkt. 39-1 at 108:7–109:4)).
Cruz responds, and the Court agrees, that her declared
statement that R2Sonic did not discuss other
accommodations to help her comply with her work
restrictions does not contradict her testimony that R2Sonic
met with her to discuss the nature of the restrictions
themselves. The Court will not strike this portion of
Paragraph 21, Cruz avers that Bonneau and Lai
“demanded” that she “complete additional
tasks” without being given additional time in a meeting
on April 3, 2017. (Cruz Decl., Dkt. 38-1, ¶ 21). R2Sonic
argues that this statement contradicts her deposition
testimony that she did not actually do additional tasks after
the April 3 meeting. (Mot. Strike, Dkt. 40, at 4 (citing
“Cruz Dep. at 119:9–120:3”)). However, the
Court cannot evaluate the merits of R2Sonic’s position
because the testimony at issue does not appear in the any of
the excerpts of Cruz’s deposition in the record.
(See Cruz Dep., Dkts. 35-1, 36-2, 38-2, 39-1). The
Court will not strike this portion of Cruz’s
Paragraphs 23 and 24, Cruz describes her physical and
cognitive impairments, such as “pain and
numbness” in her shoulder, lingering limitations for
“lifting and pushing, ” “dizziness and
headaches, ” and more. (Cruz Decl., Dkt. 38-1,
¶¶ 23, 24). R2Sonic argues that these descriptions
of her impairments are inconsistent with deposition testimony
that “she did not have any physical work restrictions
after April 2017, and never requested any accommodations from
any of her subsequent employers.” (Mot. Strike, Dkt.
40, at 6). Cruz responds, and the Court agrees, that these
statements are not contradictory. First, much of Paragraphs
23 and 24 describe her symptoms before April 2017, when she
still worked for R2Sonic. (Cruz Decl., Dkt. 38-1,
¶¶ 23, 24). Second, even the parts of those
paragraphs about symptoms that persisted beyond her
employment with R2Sonic do not inherently contradict her
later testimony that she did not have work restrictions at
subsequent jobs. A physical impairment does not necessarily
entail a work restriction, which likewise does not
necessarily entail an accommodation. Cruz argues, without
rebuttal, that her subsequent jobs differed from her role at
¶ 2Sonic such that her limitations did not require
accommodations there. (Resp. Mot. Strike, Dkt. 43, at 7). The
Court will not strike this portion of Cruz’s
the only portions of Cruz’s declaration that the Court
will strike are Paragraphs 4 and 22, which she does not
Part V of Cruz’s Motion for Partial Summary
last three and a half pages of Cruz’s motion for
partial summary judgment consist of a long table listing
R2Sonic’s eighteen affirmative defenses. (Cruz Mot.
Summ. J., Dkt. 36, at 17–20). In that table, Cruz
offers one-paragraph arguments for entering summary judgment
against those defenses. (Id.). According to R2Sonic,
this table-which uses a smaller font and wider margins than
permitted by the Court’s Local Rule CV-10(a)-is a
“blatant attempt to circumvent this Court’s page
limitation rules.” (Mot. Strike, Dkt. 40, at 6).
R2Sonic argues that because Cruz squeezed a lot of text into
a small-font table instead of seeking leave to exceed the
Court’s page limits, the Court should strike the table
altogether. (Id. at 6–8). The Court will not
do so. Having reviewed the briefs, the Court does not find
that Cruz’s use of a table prejudiced R2Sonic’s
ability to defend its affirmative defenses from summary
judgment. And in any event, had R2Sonic needed more space in
its response to attend to all of the arguments in
Cruz’s table, it could have sought leave to exceed the
Court’s page limitations. Striking Cruz’s
arguments entirely would be a disproportionate punishment for
the crime of manipulating font size and margins under these