United States District Court, W.D. Texas, San Antonio Division
ABEL M. CAMPOS, JR., Plaintiff,
STEVES & SONS, INC., Defendant.
ORDER ON MOTION FOR SUMMARY JUDGMENT
RODRIGUEZ, UNITED STATES DISTRICT JUDGE.
date, the Court considered Defendant Steves & Sons,
Inc.'s Motion for Summary Judgment (docket no. 37),
Plaintiff Abel Campos's Response (docket no. 43), and
Defendant's Reply (docket no. 45). The Court further
considered Defendant's Motion to Strike Plaintiff's
Designation of Expert Witnesses (docket no. 38),
Plaintiff's Amended Response (docket no. 40), and
Defendant's Reply (docket no. 44). Finally, the Court
considered Defendant's Motion to Strike Response to
Motion (docket no. 46), Plaintiff's Response (docket no.
47), and Defendant's Reply (docket no. 48).
careful consideration, the Court GRANTS Defendant's
Motion for Summary Judgment with respect to all claims
(docket no. 37). The Court GRANTS in part Defendant's
Motion to Strike Response (docket no. 46) and DISMISSES as
moot Defendant's Motion to Strike Designation of Expert
Witnesses (docket no. 38).
case arises out of Plaintiff Abel Campos's
(“Plaintiff”) employment with Defendant Steves
& Sons, Inc. (“Defendant”), a San
Antonio-based door manufacturer. Docket no. 37-2 at 6.
Defendant hired Plaintiff in December 2008, at which time he
began working as a welder. Docket no. 43-1 at 4. Plaintiff
eventually became a Welder-Mechanic in the Maintenance
Department, where he was charged with maintaining and
rebuilding glue spreaders. Docket no. 37-3 at 8. This job
required long hours and it regularly required lifting objects
weighing up to fifty pounds as well as frequent walking,
standing for extended periods of time, and stooping.
Id. at 9-10; docket no. 37-43 at 3.
April 2010, Plaintiff took his first FMLA leave for a
non-work-related medical condition, a leave of just over
twelve weeks, after which he was fully reinstated. Docket no.
37-3 at 15-17. Plaintiff admits he suffered no form of
demotion, adverse employment decision, or retaliation due to
that leave, and he further admits he received the proper FMLA
written notice and understood Defendant's policy required
him to bring a physician's return-to-work note to be
reinstated. Id. at 16-17.
summer of 2015, Plaintiff's physician recommended that,
due to heart complications, Plaintiff undergo surgery to
repair his heart valves. Docket no. 43-5 at 24. Plaintiff
informed his immediate supervisor, Salgino Guerra
(“Guerra”), who referred Plaintiff to Susan
Santana, Defendant's HR Manager (“Santana”).
Docket no. 43-1 at 6. At least one month prior to his
surgery, Plaintiff provided Defendant with his FMLA
certification from Dr. Wendy Carpenter. Docket no. 37-3 at
13. Plaintiff's last day of work was July 20, 2015.
Id. at 18.
August 5, 2015, Plaintiff underwent heart surgery, during
which he experienced numerous complications that left him
comatose and in critical condition for several weeks. Docket
no. 43-5 at 25. Subsequent complications and diagnoses
included end-stage renal disease, respiratory failure, a
stroke, and pneumonia. Docket no. 37-3 at 19; no. 37-10 at 2;
no. 37-11 at 6. Plaintiff was not discharged from the
hospital until September 16, and his discharge paperwork from
that day indicates he was not to return to work until cleared
by a clinic physician. Docket no. 37-3 at 23; no. 37-11 at 7;
see also docket no. 43-5 at 28 (indicating Plaintiff
understood the requirement of obtaining a
physician's release to return to work).
underwent another surgery on October 7, 2015 after a
previously-placed hemodialysis catheter did not improve
Plaintiff's kidney function. Docket no. 37-15 at 2. On
October 27, 2015, Plaintiff visited Dr. Taylor Hicks of
UHS's Dialysis Clinic, where Dr. Hicks noted that
Plaintiff suffered from hypertensive heart disease as well as
stage five chronic, or end-stage, renal disease. Docket no.
37-16 at 2. Dr. Hicks noted that Plaintiff had recovered well
from his October 7th surgery but that Plaintiff continued to
complain of certain symptoms that were “not well
controlled.” Docket no. 37-17 at 2. On that same day,
UHS's Transplant Coordinator attempted to contact
Plaintiff to proceed with a kidney transplant evaluation.
Docket no. 37-14 at 2. Also on that day, Plaintiff met with
Santana, where he mentioned he would need to attend dialysis
appointments but did not indicate he would need any further
accommodations. Docket no. 43-2 at 14-18; no. 37-3 at
weeks later, Plaintiff returned to work, where he met with
Jim Parker (“Parker”), Defendant's Chief
Engineer, who told him to return to work the following
Monday. Id.; docket no. 43-5 at 44. Santana and
Karen Schram (“Schram”), both with HR, told
Parker that Plaintiff still needed an appropriate medical
release signed by a physician, though Parker did not discuss
that with Plaintiff, as Parker believed that “this was
an HR thing, whether he had a medical release….”
Docket no. 37-41 at 4.
scheduled, the following Monday Plaintiff returned to work,
where he recorded a meeting with Parker. Docket no. 43-5 at
44; no. 43-12. In that meeting, Parker informed Plaintiff
that Defendant had filled his previous position during
Plaintiff's absence because Defendant “literally
could not operate” without glue spreaders. Docket no.
43-3 at 5-6; no. 43-12 at 20; no. 37-3 at 8. In the
recording, Plaintiff and Parker discuss an alternative job
placement for Plaintiff. Id. Parker offered
Plaintiff a replacement job in the steel door manufacturing
line, a job that came with “equal pay and better
status, better conditions, [was] more friendly to him and his
conditions, and…[was] a better job for
advancement….” Docket no. 37-41 at 4; no. 43-12
at 28-29 (“This here is going to be a lot less
strenuous work than lifting and pushing and
shoving….”). The steel manufacturing line was
part of a growing $7 million investment, and Parker noted he
saw this job as a good fit for Plaintiff because of
“his mechanical ability, his maturity, and his common
sense…” Docket no. 37-41 at 4. The new position
would require several physical demands - including sitting
and standing for extended periods of time - but these were
less strenuous than Plaintiff's previous position. Docket
no. 37-43 at 2.
meeting, Parker urged Plaintiff to demonstrate his commitment
to the steel manufacturing line. Docket no. 43-12 at 24
(“[Y]ou have to convince me that this is something you
really want to do for a [sic] future, and that's what you
want to do…to work on the steel line for me to go down
that road because it's a lot of training.”).
Plaintiff remarked “I'll take the job because I
need a job, ” and “If that's where you put
me, well, then there's nothing I can say.”
Id. at 25. This was not, however, a formal offer of
the steel manufacturing position. Docket no. 37-41 at 5.
Rather, Parker stated he needed to talk to managers at the
new position to ensure it was an available position.
Id.; docket no. 43-12 at 29. At that point in the
meeting, Plaintiff asserted that he was “a hundred
percent released” to work, with no restrictions.
Id. at 31-32.
November 30, 2015, Plaintiff returned to work, where he met
again with Parker. Docket no. 43-14. In that conversation,
Parker told Plaintiff that “the green light had been
given for him to take [the steel line] job.” Docket no.
37-41 at 5. Plaintiff also recorded this conversation, though
the transcript begins midway through the conversation. Docket
no. 43-13. Parker recalls “three different
times coming back to that this is a really good job for him
and I could really use him. Because we needed to build a
team. This is a $7 million-dollar investment; we've got
to have a team of operators.” Docket no. 37-41 at 6.
Parker told Plaintiff that “there was a stool that he
could sit on at the computer console because of the - leg
situation, which is all I knew about his condition.”
Id. at 8. It is clear from both the partial
transcript and Parker's recollection that Plaintiff
turned down the job and that his employment was thereby
terminated. Id. at 6-8 (“[H]e came into that
second meeting already determined…that he wasn't
going to take the job, that wasn't what he wanted. He
wanted to do welding and fabrication….”).
that day, Santana filled out an Unemployment Compensation
Management Separation Record, where she wrote that Plaintiff
“was terminated because he exhausted his FMLA
leave (and was not making monthly payments on
ins[urance]. And also for medical reasons.” Docket no.
43-2 at 20.
December 16, 2015, Plaintiff first applied for Social
Security Disability Insurance (“SSDI”) benefits.
Docket no. 37-29 at 2. Plaintiff's daughter filled out
the initial application, but Plaintiff was present and
reviewed the forms before their submission. Docket no. 37-3
at 32-33. The application stated “I became unable to
work because of my disabling condition on July 20, 2015. I am
still disabled.” Docket no. 37-29 at 2. Plaintiff
himself subsequently filled out a Work History Report for the
SSA. Docket no. 37-5. In that report, Plaintiff indicated he
regularly lifted up to twenty-five pounds and sometimes up to
100 pounds. Id. He further noted that his job
required him to perform physical tasks such as climbing,
crouching, crawling, and handling big objects. Id.
In January 2016, Plaintiff submitted a “Function
Report-Adult” to the SSA in which he remarked that:
The severity of my injuries has prevented me from working
most recently due to numerous complications since waking up
from the coma. I experience total numbness in my arms, hands,
feet, back, and feet. Along with tingling and numbness in my
neck caused by a plate holding a few of my discs from being
crushed. My motor skills have been greatly affected as well.
Walking or sitting seems to be a task now. Or just causes
major discomfort in my hips and knees.
Docket no. 37-30 at 2. He also noted that “I can no
longer weld since waking up from my coma, or stand for long
periods of time.” Id. at 6. He indicated he
struggles with tasks such as lifting, standing, walking,
completing tasks, concentration, and using his hands.
Id. at 7.
January 2016, Dr. Mamta Kumar with University Hospital
completed a physical therapy evaluation of Plaintiff and
noted in the report that Plaintiff was not working, and that
one of his goals was to be able to work. Docket no. 37-19 at
3. Dr. Kumar did note that Plaintiff's rehabilitation
potential was “good.” Id. at 6.
later, Plaintiff saw Dr. Samir Patel and Dr. Scott Spendlove
at UHS's Vascular Surgery Lab. Docket no. 37-21. In that
evaluation, Plaintiff complained of continuing “pins
and needles…, feeling mentally slower, and an
awkwardness with doing tasks that he used to be able to do,
like raking the leaves. Walking up steps is
harder….” Id. at 5. The report further
notes that Plaintiff “displays weakness and abnormal
reflex.” Id. at 6. Though Plaintiff's
mood, affect, and judgment were normal, he exhibited
“abnormal new learning ability and abnormal recent
memory, ” with “frequent word searching and
inability to remember words and terms.” Id.
The report's plan expresses concern that Plaintiff had an
anoxic brain injury caused by his stroke and recommends
further neurology consultations, lidocaine infusion, and
beginning treatment with gabapentin. Id.
March 2016, Plaintiff saw Darren Hackey, a physical therapist
with UHS. Docket no. 37-22. In that evaluation, Plaintiff
reported that physical therapy had helped with thoracic back
pain but that he continued to have “pain, numbness, and
tingling in the mid-back.” Id. at 3. Mr.
Hackey suggested further MRI imaging to investigate potential
spinal issues. Id. The report also notes that
Plaintiff “feels that he is unable to return to work,
although he would like to.” Id. Plaintiff
visited Mr. Hackey again later that year, where he reported
he had difficulty walking, climbing stairs, and doing yard
and housework. Docket no. 37-28 at 2.
March, Plaintiff filed a Charge of Discrimination with the
Equal Employment Opportunity Commission (“EEOC”)
and the Texas Workforce Commission-Civil Rights Division
(“TWC-CRD”). Docket no. 37-31 at 2. In that
Charge, Plaintiff claims his termination was the result of
disability discrimination and retaliation for requesting a
reasonable accommodation. Id. In response, Plaintiff
received a Right to File Civil Action notice. Docket no. 1-5
April 15, 2016, Plaintiff filled out a new patient form at
the Orthopedic Spine Clinic in which he noted his pain was a
nine out of ten and that his pain prevented him from moving.
Docket no. 37-23 at 2. A physician's report from that
visit remarked that Plaintiff had difficulty standing for
more than an hour and that “physical therapy for one
month has not provided any relief.” Id.
Plaintiff also reported upper extremity weakness and
difficulty with fine motor control. Id. Days later,
Plaintiff visited the same physician, who noted that
plaintiff “is having a difficult time getting back into
the workforce due to weakness and inability to perform his
typical duties as a welder.” Docket no. 37-25 at 2. The
treating physician expressed that his “symptoms are
again concerning for cervical myelopathy and lumbar
radiculopathy.” Id. at 4. He did report,
however, that Plaintiff's symptoms had stabilized and
that Plaintiff would like to continue nonoperative
times in July and September of 2016, Plaintiff met with Dr.
Pearl Jones of the UT Health Science Center, who, when
referring to Plaintiff's pain, noted that “Nothing
makes it better…Gabapentin didn't help. Lidocaine
helped for a few days….” Docket no. 37-26 at 2.
She also noted continuing memory issues. Id. On
September 21, Dr. Jones issued a letter in which she noted
that Plaintiff suffered from “several active neurologic
issues which may prevent his ability to work” and that
“[h]is treatment is ongoing.” Docket no. 37-34 at
2. Plaintiff initiated this lawsuit on November 14, 2016 in
Texas state court. As presently before the Court, Plaintiff
accuses Defendant of disability discrimination and failure to
accommodate under the Texas Labor Code and the Americans with
Disabilities Act (“ADA”), retaliation under the Texas
Labor Code and the Family Medical Leave Act
(“FMLA”), and interference under the FMLA.
Defendant moves for summary judgment on all claims.
Standard of Review
Court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56. To establish that there is no genuine issue
as to any material fact, the movant must either submit
evidence that negates the existence of some material element
of the non-moving party's claim or defense, or, if the
crucial issue is one for which the non-moving party will bear
the burden of proof at trial, merely point out that the
evidence in the record is insufficient to support an
essential element of the non-movant's claim or defense.
Lavespere v. Niagara Mach. & Tool Works, Inc.,
910 F.2d 167, 178 (5th Cir. 1990). Once the movant carries
its initial burden, the burden shifts to the non-movant to
show that summary judgment is inappropriate. See Fields
v. City of S. Hous., 922 F.2d 1183, 1187 (5th Cir.
court to conclude that there are no genuine issues of
material fact, the court must be satisfied that no reasonable
trier of fact could have found for the non-movant, or, in
other words, that the evidence favoring the non-movant is
insufficient to enable a reasonable jury to return a verdict
for the non-movant. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). In making this
determination, the court should review all the evidence in
the record, giving credence to the evidence favoring the
non-movant as well as the “evidence supporting the
moving party that is uncontradicted and unimpeached, at least
to the extent that evidence comes from disinterested
witnesses.” Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 151 (2000). The court “may not
make credibility determinations or weigh the evidence”
in ruling on a motion for summary judgment, id. at
150, and must review all facts in the light most favorable to
the non-moving party. First Colony Life Ins. Co. v.
Sanford, 555 F.3d 177, 181 (5th Cir. 2009).
alleges that Defendant failed to engage in the interactive
process or offer to make a reasonable accommodation for
Plaintiff, and that Plaintiff's disability was, at
minimum, a motivating factor in Defendant's decision to
terminate him. Alternatively, Plaintiff claims that he was
regarded as disabled, in that he suffered from a minor
physical impairment that did not limit a major life activity
but which Defendant nonetheless perceived as substantially
limiting. Defendant, in turn, argues that Plaintiff was not a
qualified individual, that any ...