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Cruz v. R2sonic, LLC

United States District Court, W.D. Texas, Austin Division

September 26, 2019

CELINA CRUZ, Plaintiff,
v.
R2SONIC, LLC, Defendant.

          ORDER

          ROBERT PITMAN UNITED STATES DISTRICT JUDGE

         Before 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.

         I. BACKGROUND

         This is 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).

         In 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).

         The 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).

         The 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).

         Cruz 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).

         II. LEGAL STANDARD

         Summary 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).

         If the 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 Cir. 2017).

         Unsubstantiated 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).

         III. DISCUSSION

         A. R2Sonic’s Motion to Strike

         Cruz 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).[1] 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.

         1. Cruz’s Declaration

         A party 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).

         In 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.

         In 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 Cruz’s declaration.

         In 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 declaration.

         In 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 declaration.

         Accordingly, the only portions of Cruz’s declaration that the Court will strike are Paragraphs 4 and 22, which she does not oppose.

         2. Part V of Cruz’s Motion for Partial Summary Judgment

         The 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 circumstances.

         B. Was ...


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