United States District Court, W.D. Louisiana, Shreveport Division
HORNSBY MAGISTRATE JUDGE
ELIZABETH ERNY FOOTE UNITED STATES DISTRICT JUDGE
the Court is a motion for summary judgment [Record Document
17] filed by Defendant Teleperformance USA, Inc.
("TPUSA") seeking dismissal of Plaintiffs wrongful
termination claims. TPUSA has produced evidence that
Livas's repeated absences rendered her unqualified for
her position and that enforcement of its no-show policy is a
legitimate, nondiscriminatory reason for terminating her.
[Record Document 17-2 at 14-18]. Plaintiffs sixty-five-word
opposition adduces no countervailing evidence. [Record
Document 19]. As a result, TPUSA's motion for summary
judgment [Record Document 17] is GRANTED.
April Livas ("Livas") began to work for TPUSA as a
call center representative in November 2013. [Record Document
17-1 at 1]. Upon being hired, she was given access to
TPUSA's employee handbook, which provides that
"[r]egular, predictable, and reliable attendance is an
essential component of each employee's job
performance." [Record Documents 17-1 at 1 and 17-4 at
2]. Under TPUSA policy, an employee who does not appear for
work and does not contact her supervisor within two hours of
the beginning of her scheduled shift commits a "No
Call/No Show" ("NCNS") violation, and two NCNS
violations in a twelvemonth period may result in termination
of employment. [Record Document 17-4 at 3].
order to treat her migraine headaches, Livas took full-time
leave under the Family and Medical Leave Act
("FMLA") from February 11, 2015 to February 10,
2016. [Record Document 17-1 at 2]. In February 2016, she
renewed her request for FMLA leave, but her physician
certified that she needed leave "1 time per 3 months for
1 day per episode." [Record Documents 17-1 at 2 and 17-6
at 7]. After her new period of leave began on February 11,
2016, Livas missed a great deal of work. [Record Document
17-1 at 2-3]. Before she was terminated on April 12, 2016,
Plaintiff missed seventeen days of work for a variety of
reasons and was late two additional times. [Id. at
2-4]. TPUSA classified the first two missed days as FMLA
leave. [Id. at 2]. Although Livas usually called
TPUSA's employee attendance line to report her absences,
she did not do so on March 25 and 26, 2016.[Id.].
She later texted a manager that she had been unable to call
in because she had been incarcerated. [Id. at 3]. In
light of these two NCNS events, TPUSA decided to terminate
Livas's employment. [Id. at 2-3]. When Plaintiff
next reported to work on April 12, 2016, she was informed
that she had been terminated. [Id. at
her termination, Livas's application for unemployment
benefits was denied by the Louisiana Workforce Commission,
which found that she had been discharged for misconduct.
[Record Document 16 at 2]. On appeal, an administrative law
judge (the "ALJ") reversed this determination
because TPUSA did not participate in the hearing and thus did
not sustain its burden of proving Livas's misconduct.
[Id. at 3]. Livas also initiated proceedings before
the Equal Employment Opportunity Commission
("EEOC"), which issued a right-to-sue letter on
August 3, 2017. [Record Document 1-2]. Following service and
an answer, TPUSA filed the instant motion in accordance with
this Court's scheduling order. [Record Documents 12 and
17]. Livas has responded, rendering this matter ripe for
adjudication. [Record Document 19].
Law and Analysis
Summary Judgment Standard
Rule of Civil Procedure 56(a) directs a court to "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." Summary judgment is
appropriate when the pleadings, answers to interrogatories,
admissions, depositions, and affidavits on file indicate that
there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
When the burden at trial will rest on the non-moving party,
the moving party need not produce evidence to negate the
elements of the non-moving party's case; rather, it need
only point out the absence of supporting evidence. See
Id. at 322-23.
movant satisfies its initial burden of showing that there is
no genuine dispute of material fact, the nonmovant must
demonstrate that there is, in fact, a genuine issue for trial
by going "beyond the pleadings" and
"designating] specific facts" for support.
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Or. 1994) (citing Celotex, 477 U.S. at 325).
"This burden is not satisfied with some metaphysical
doubt as to the material facts' by conclusory or
unsubstantiated allegations, or by a mere "scintilla of
evidence." Id. (internal quotation marks and
citations omitted). However, "[t]he evidence of the
non-movant is to be believed, and all justifiable inferences
are to be drawn in his favor." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1985) (citing
Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-59
(1970)). While notweighing the evidence or evaluating the
credibility of witnesses, courts should grant summary
judgment where the critical evidence in support of the
nonmovant is so "weak or tenuous" that it could not
support a judgment in the nonmovant's favor.
Armstrong v. City of Dall, 997 F.2d 62, 67 (5th Cir.
Local Rule 56.1 requires the movant to file a statement of
material facts as to which it "contends there is no
genuine issue to be tried." The opposing party must then
set forth a "short and concise statement of the material
facts as to which there exists a genuine issue to be
tried." W.D. La. R. 56.2. All material facts set forth
in the movant's statement "will be deemed admitted,
for purposes of the motion, unless controverted as required
by this rule." Id.
of the Americans with Disabilities Act ("ADA")
prohibits employers from discriminating against persons with
disabilities. 42 U.S.C. §§ 12111-12117 (2012). The
ADA defines a disability as a "physical or mental
impairment that substantially limits one or more major life
activities . . .; a record of such an impairment; or being
regarded as having such an impairment." 42 U.S.C. §
12102(1) (2012). Because Congress has instructed courts to
construe these definitions as broadly as possible,
id. § 12102(4)(A), the "threshold issue of
whether an impairment 'substantially limits' a major
life activity should not demand extensive analysis''
29 C.F.R. § 1630.2(j)(1)(iii) (2017). To be protected by
the AD A, an employee with a disability must be
"qualified'' that is, able to perform the
essential functions of her position either with or without
accommodations. 42 U.S.C. § 12111(8). Although courts
must give weight to an ...