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Jones v. Sewerage & Water Board of New Orleans

United States District Court, E.D. Louisiana

October 10, 2018


         SECTION: “J” (3)



         Before the Court is a Motion for Summary Judgment (Rec. Doc. 17) filed by Defendant, Sewerage & Water Board of New Orleans (“Defendant”), an opposition thereto (Rec. Doc. 20) filed by Plaintiff, Lewerence Jones (“Plaintiff”), and a reply memorandum (Rec. Doc. 25) filed by Defendant. Having considered the motion and legal memoranda, the record, and the applicable law, the Court finds that the motion should be GRANTED.


         This litigation derives from Plaintiff's allegations that his former employer, Defendant, violated the Americans with Disabilities Act (“ADA”) when it terminated Plaintiff's employment. Plaintiff is HIV positive and his medical records indicate that prior to his employment with Defendant, Plaintiff was diagnosed with acute systolic heart failure, congestive heart failure, and atrial fibrillation.

         Prior to being hired by Defendant, Plaintiff had a physical examination and completed a medical questionnaire with the assistance of a nurse. The medical questionnaire states that falsification may be grounds for termination. Although Plaintiff's form indicated that he did not take prescription medication and had never been hospitalized, Plaintiff subsequently conceded in the course of this litigation that this information was false.

         On May 16, 2016, Plaintiff began working as an outdoor laborer for Defendant. On November 14, 2016-the last day that Plaintiff performed work for Defendant- Foreman Myron Ester received a report that Plaintiff had complained of chest pain. Plaintiff did not perform work that day and was instructed to obtain a note from a medical doctor in order to return to work. Plaintiff visited CrescentCare on November 30, 2016, but he did not obtain a return-to-work note until his visit to CrescentCare on December 6, 2016. Given that at the time Plaintiff produced the December 6, 2016 note he had been absent from work for more than seven days and the note did not address Plaintiff's cardiac fitness, Defendant required Plaintiff to obtain a note from a cardiologist to demonstrate his fitness for duty before returning to work.

         Approximately one month later on January 5, 2017, Defendant issued a Notice of Pre-Termination Hearing to Plaintiff, citing his inconsistent attendance and failure to report to work since November 14, 2016. Plaintiff appeared at the pre-termination hearing on January 11, 2017. Despite having obtained a note dated January 9, 2017 from Dr. Atluri of UMCNO's Cardiology Center stating that Plaintiff could return to work without restrictions, the record shows that Plaintiff did not present the note at the time of the hearing or thereafter, and it was produced only during discovery in this case.

         On January 18, 2017, Defendant issued a letter advising Plaintiff that his employment had been terminated effective as of that date. The reason provided for the termination was Plaintiff's inconsistent attendance throughout his employment with Defendant and his abandonment of the position. Specifically, Plaintiff had more than forty unauthorized absences from work between May 2016 and November 2016.[1]Plaintiff subsequently sought and was awarded Social Security disability benefits. On his Social Security paperwork, Plaintiff indicated that he “stopped working” for Defendant because of his “physical and/or mental condition(s).”

         Thereafter, Plaintiff timely filed a Charge of Discrimination with the United States Equal Employment Opportunity Commission (“EEOC”) against Defendant. On June 16, 2017, the EEOC closed the file[2] and issued a right to sue letter. On August 21, 2017, Plaintiff sued Defendant in federal court. On September 11, 2018, Defendant filed the instant Motion for Summary Judgment, which Plaintiff opposes.


         I. Movant's Arguments

         Defendant contends that it is entitled to summary judgment because Plaintiff failed to exhaust administrative remedies and, even if he had, the undisputed facts show that Plaintiff cannot sustain a claim for disability discrimination as a matter of law. (Rec. Doc. 17-1, at 1). In support of its argument that Plaintiff failed to exhaust administrative remedies, Defendant notes that Plaintiff's EEOC file contains only an incomplete, unsigned EEOC charge. (Rec. Doc. 17-1, at 8). Accordingly, Defendant argues that Plaintiff did not exhaust his administrative remedies and this Court lacks jurisdiction over his claim. (Rec. Doc. 17-1, at 10).

         Defendant next argues that Plaintiff's ADA claim is not actionable because Plaintiff cannot make out the requisite elements of his prima facie case. (Rec. Doc. 17-1, at 10). Specifically, Defendant asserts that Plaintiff (1) was not qualified for the position at issue given his medical history; (2) was not subjected to an adverse employment action on account of his disability given his sworn statement to the Social Security Administration that he “stopped working” for Defendant due to his “physical and/or mental condition(s)”; and (3) was not replaced by or treated less favorably than non-disabled employees. (Rec. Doc. 17-1, at 10-11). Defendant asserts that even if Plaintiff could make out his prima facie case, he cannot overcome Defendant's legitimate non-discriminatory reason for his discharge. (Rec. Doc. 17-1, at 12). Specifically, Defendant avers that it terminated Plaintiff's employment because of his inconsistent attendance.[3] (Rec. Doc. 17-1, at 12).

         Finally, Defendant argues that even if Plaintiff could recover for alleged disability discrimination, his damages and relief would be limited because Defendant learned that Plaintiff intentionally provided false statements regarding his medical history in his pre-hire documentation. (Rec. Doc. 17-1, at 13). Accordingly, Defendant argues that Plaintiff's claims for front pay and/or reinstatement should be denied, and any claim for back pay should be limited. (Rec. Doc. 17-1, at 13).

         II. Plaintiff's ...

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