United States District Court, E.D. Louisiana
ORDER AND REASONS ON MOTION
C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE.
René Paige (“Paige”), alleges that his
former employer, Pellerin Milnor Corporation
(“Milnor”), failed to accommodate his disability
and discriminated and retaliated against him based on that
disability by terminating his employment, all in violation of
the Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12101 et seq. He also alleges interference with
and retaliation for pursuing his rights under the Employee
Retirement Income Security Act (“ERISA”), 29
U.S.C. § 1140. Complaint, Record Doc. No. 1. This matter
was referred to a United States Magistrate Judge for all
proceedings and entry of judgment in accordance with 28
U.S.C. § 636(c) upon written consent of all parties.
Record Doc. No. 16.
filed a timely motion for summary judgment, supported by an
affidavit, verified documents and deposition excerpts. Record
Doc. No. 31. The motion seeks dismissal of all of
plaintiff's remaining claims on several
grounds. Paige filed a timely memorandum in
opposition, Record Doc. No. 34, with supporting exhibits,
including photographs and verified documents pertaining to
his foot condition. Plaintiff's Exhibits, Record Doc.
Nos. 34-3-5. Plaintiff asserts that genuine issues of
material fact exist as to each of his claims. Record Doc. No.
34 at p. 1.
considered the complaint, the record, the arguments of the
parties and the applicable law, IT IS ORDERED that
defendant's motion for summary judgment is GRANTED for
the following reasons.
THE UNDISPUTED FACTS
following material facts are accepted as undisputed solely
for purposes of the pending motion for summary judgment.
Plaintiff admitted the majority of defendant's statement
of undisputed material facts, Record Doc. No. 31-2, in his
statement of undisputed and disputed material facts, Record
Doc. No. 34-1.
began work at Milnor as a temporary employee in the position
of “Assembler I” in February 2012.
Plaintiff's statement of undisputed and disputed material
facts, Record Doc. No. 34-1at ¶ 1. He was promoted to
“Assembler II” and became a full-time Milnor
employee in August 2013. Id. at ¶ 2. In that
position, Paige assembled harnesses for industrial dryers
manufactured at Milnor's plant. Id. at ¶ 3.
He worked ten-hours shifts four days a week. Id. at
¶ 4. The job involved heavy physical labor, including
climbing four flights of stairs eight to ten times a day,
standing and walking for approximately 80% of his ten-hour
shift, stretching wires, hammering, stooping, kneeling,
crouching and other physical labor that was taxing on his
hands, feet and body. Id. at ¶¶ 5 &
January 8, 2015, Paige emailed his supervisor in the morning
saying that he was ill and unable to attend work, but Paige
traveled to Alabama later the same day. Id. at
¶¶ 6-7; Record Doc. No. 34-2 at p.50. Paige
received a counseling and final warning letter regarding his
repeated failure to provide required documentation about his
anticipated absences, particularly for doctors' visits,
on June 1, 2015. Defendant's MSJ Exhibit C, Record Doc.
No. 31-3 at p.141. The next day, June 2, 2015, Milnor's
employee relations manager, Steven Harris, discussed the
warning letter with Paige and provided him with copies of
Milnor's attendance policies and a supervisor guidance
memorandum. Id. at p. 143 (Defendant's MSJ
August 2015, Paige was diagnosed with post-traumatic stress
disorder, tinnitus, right ankle problems, and arthritis in
his hands and feet. Record Doc. No. 34-1 at ¶ 54. In
late July/early August 2015, Paige claimed to experience
debilitating pain in his right foot. Id. at ¶
8. He reported to work on August 4, 2015, with a doctor's
note from the day before, August 3, 2015, indicating he could
work “light duty” if he “[a]void[ed]
extended standing/walking.” Id. at ¶ 9;
Defendant's MSJ Exhibit E, Record Doc. No. 31-3 at p.145.
Paige was asked to provide a more detailed description of his
physical restrictions so a determination could be made by
Milnor as to whether those restrictions could be
accommodated. Defendant's MSJ Exhibit F, Record Doc. No.
31-3 at p. 146.
submitted a doctor's note to Milnor on August 6, 2015,
indicating that his weight-bearing time was restricted to
“2 hours with 20 minute rest in between each weight
bearing task” and that he could not return to work
until August 18, 2015. Record Doc. No. 34-1 at ¶¶
12-13. Paige then applied for and was placed on short-term
disability status and began receiving short-term disability
benefits. Id. at ¶ 14. He understood that the
benefits ensured he was paid while he was unable to work.
Id. at ¶ 15. Paige returned his short-term
disability paperwork to Milnor on August 17, 2015, and
attached a doctor's note indicating he was capable of
performing “clerical/administrative” work but
could not resume work until an MRI was performed.
Id. at ¶ 16.
testified that he was only able to stand for approximately
five to ten minutes, from August 2015 to October 2015, with
the aid of a corrective boot specifically molded to fit his
foot, id. at ¶ 49, and that he was able to
stand for 25 to 30 minutes by December 2015, id. at
¶ 50. During plaintiff's leave in October 2015,
while Milnor was conducting surveillance on one of
plaintiff's co-workers, plaintiff was observed wearing
dress shoes. Id. at ¶ 42. While under
surveillance, plaintiff also engaged in numerous activities
that he had claimed he could not perform due to his foot
condition, including but not limited to driving, standing,
walking, exercising several times on a stationary bike at a
fitness facility and performing physical labor, all without
wearing his special foam boot or any other visible brace or
aid. Id. at ¶ 43. On September 16, 2015, Paige
informed Milnor that his MRI showed bone spurs, severe
arthritis and a contusion. Id. at ¶ 17;
Defendant's MSJ Exhibit L, Record Doc. No. 31-3 at p.
159. Paige followed up eight days later with a medical note
from the Department of Veterans Affairs indicating that he
was unable to return to work until October 30, 2015. Record
Doc. No. 34-1 at ¶ 18.
from Paige's October 20, 2015, visit to the South
Louisiana Veterans Health Care System indicated he would not
be able to return to work until he was released from his
doctor's medical care and that he would be reevaluated on
November 23, 2015. Id. at ¶ 19. Steven Harris
took note of Paige's report, on November 23, 2015, that
he wore his corrective boot all day and could not stand for
an hour without extreme discomfort and foot swelling.
Defendant's MSJ Exhibit P, Record Doc. No 31-3 at p.163.
November 27, 2015, Milnor received a letter from the
Department of Veterans Affairs stating that plaintiff had
filed a claim with the Department for “unemployability
benefits, ” which are long-term disability benefits,
indicating “the reason he is unemployable is because of
his service connected disabilities, which include medical
conditions relating to his knee, hypertension, right foot and
Post Traumatic Stress Disorder.” Record Doc. No. 34-1
at ¶ 21; Defendant's MSJ Exhibit Q, Record Doc. No.
31-3 at p. 164. Paige advised Milnor's Benefits
Coordinator, Sue Pellegrine, on December 2, 2015, that his
next appointment at the Department of Veterans Affairs
podiatry clinic was scheduled for January 26, 2016. Record
Doc. No. 34-1 at ¶ 22. Pellegrine noted that she asked
plaintiff for assistance in providing Milnor with updated
information regarding his limitations and restrictions.
Id. at ¶ 23. Paige offered to get that
information from his doctor, but Milnor had to make the same
request again on December 14, 2015. Id. at ¶
signed a certification on December 17, 2015, indicating he
had requested short-term disability leave from Milnor
beginning on August 5, 2015, due to his foot condition.
Id. at ¶ 26-27. Plaintiff did not
request an accommodation because no light-duty version of the
assembler job existed. Id. at ¶ 59. He was
unaware of and did not ask whether any clerical or
administrative jobs were available at Milnor between August
2015 and January 2016. Id. at ¶ 60. There were
only four to five clerical/administrative jobs at Milnor
during that period, all of which were filled. Id. at
¶ 61. Milnor would have had to create a new position to
accommodate Paige, if he had requested an
accommodation. Id. at ¶ 62.
was notified by Milnor of his termination based upon his
dishonesty and falsifying official documents/records, via
letter on January 11, 2016. Id. at ¶ 44. Milnor
informed Paige that it made the termination decision based on
the discrepancies observed between the activities Paige
performed while under surveillance and the activities he
alleged he was physically unable to perform. Id.
Paige asserts that he could perform the activities observed
while under surveillance temporarily after he obtained
inserts for his shoes in November 2015. Id. at
¶ 45. Plaintiff did not inform Milnor of any changes in
his ability to walk or stand on a limited basis between the
time he certified his limitations to Milnor in
November/December 2015 and when he was terminated.
Id. at ¶ 46. In late January 2016, Paige's
doctor informed him that his condition is permanent and that
he would never be able to perform the job of an assembler.
Id. at ¶ 48 & 57.
had no intention of seeking long-term disability benefits
from Milnor at the time of his termination because he was not
yet aware that his foot condition was permanent. Id.
at ¶ 74. Plaintiff never discussed applying for
long-term disability with Milnor because he was unaware of
its availability, and he did not know that his receipt of
short-term disability benefits was time-limited. Id.
at ¶ 77.
does not dispute that he actually performed the activities
identified in the termination letter and observed while he
was under surveillance. Id. at ¶ 64. Paige
admitted he does not know whether any additional reason
exists for his termination, Paige; he merely disagrees with
the manner in which he was terminated. Id. at ¶
66. He believes Milnor should have discussed its surveillance
observations with him; that he should have received special
consideration as a veteran; and that Milnor should have
terminated him in person. Id. at ¶ 67-68. Paige
made no complaints to Milnor regarding alleged
discrimination before his termination in January 2016.
Id. at ¶ 73.
January 19, 2016, Paige filed an EEOC Charge of
Discrimination against Milnor, describing the type of
discrimination as “other.” Id. at ¶
79. He amended his charge on February 4, 2016, to indicate
the alleged discrimination was based on
“disability.” Id. at ¶ 81. Paige
submitted a handwritten note to the EEOC on September 22,
2016, stating that his termination was the product of
retaliation and discrimination based on his veteran status
and race. Id. at ¶ 70.
Standards of Review
party may move for summary judgment, identifying each claim
or defense-or the part of each claim or defense-on which
summary judgment is sought. The 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(a). Rule
56, as revised effective December 1, 2010, establishes new
procedures for supporting factual positions:
(1) A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact.
(2) Objection That a Fact Is Not Supported by Admissible
Evidence. A party may object that the material cited to
support or dispute a fact cannot be presented in a form that
would be admissible in evidence.
(3) Materials Not Cited. The court need consider only the
cited materials, but it may consider other materials in the
(4) Affidavits or Declarations. An affidavit or declaration
used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in
evidence, and show that the affiant or ...