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Paige v. Pellerin Milnor Corp.

United States District Court, E.D. Louisiana

November 6, 2017

RENÉ PAIGE
v.
PELLERIN MILNOR CORPORATION

          ORDER AND REASONS ON MOTION

          JOSEPH C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, 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.[1] 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.

         Milnor 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.

         Having 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.

         I. THE UNDISPUTED FACTS

         The 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.

         Paige 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 & 35.

         On 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 Exhibit D).

         Before 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.

         Plaintiff 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.

         Plaintiff 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.

         A note 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.

         On 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 ¶ 25.

         Plaintiff 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.

         Paige 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.

         Plaintiff 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.

         Plaintiff 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.

         On 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.[2] Id. at ¶ 70.

         II. ANALYSIS

         A. Standards of Review

         “A 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 record.
(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 ...

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