United States District Court, E.D. Louisiana
ORDER AND REASONS
J. BARBIER UNITED STATES DISTRICT JUDGE
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.
AND PROCEDURAL HISTORY
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.
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.
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.
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.
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.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).”
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 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.
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).
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. (Rec. Doc. 17-1, at 12).
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).