United States District Court, E.D. Louisiana
ORDER AND REASONS
Transdev Services, Inc. filed a motion for summary judgment
in its favor and against plaintiff. Rec. Doc. 21. Plaintiff
filed a response in opposition. Rec. Doc. 27. Defendant then
sought, and was granted, leave to file a reply. Rec. Doc. 30.
reasons discussed below, IT IS ORDERED that
defendant's motion for summary judgment is
IS FURTHER ORDERED that defendant's motion in
limine (Rec. Doc. 26) is hereby DISMISSED as
BACKGROUND AND PROCEDURAL HISTORY
Darius Brown filed a complaint against defendant Transdev
Services Inc for violations of the Americans with Disability
Act (ADA). Rec. Doc. 1. Plaintiff alleges that defendant
violated the ADA by subjecting him to adverse employment
actions on account of HIV-positive status, leading to his
termination. Plaintiff's allegations are described in
detail in a previous Order and Reasons issued by this Court
and are incorporated by reference here. Rec. Doc. 17.
filed the instant motion for summary judgment, asserting that
plaintiff's case is based on pure speculation and that he
has no evidence in support of the claim that his termination
was on the basis of his HIV-positive status. Rec. Doc. 21.
Defendant asserts that there is no evidence that anyone at
Transdev knew plaintiff had HIV, and therefore defendant
could not have discriminated against plaintiff on the basis
of his HIV-status. Id. Defendant states that
plaintiff has not demonstrated a genuine dispute as to the
fact that plaintiff had excessive absences during his
probationary period and was involved in a preventable
accident, which were the actual basis for his termination.
Rec. Doc. 28. Plaintiff filed his response in opposition
asserting that he has provided sufficient evidence to
demonstrate that there remain genuine issues of material fact
as to whether he was capable of complying with Transdev's
attendance policy and whether the accident in which he was
involved was actually preventable. Rec. Doc. 27. Plaintiff
states that Transdev had notice of his HIV-positive status
and he was terminated following Transdev's receipt of
this information, therefore plaintiff argues that summary
judgment is not proper. Id.
argues that plaintiff cannot establish a disparate treatment
claim or a failure to accommodate claim pursuant to the ADA.
Rec. Doc. 21. Defendant asserts that plaintiff cannot
establish a prima facie case of disparate treatment because
he could not perform the essential function of maintaining
regular attendance and therefore was not qualified for his
job. Rec. Doc. 21-2 at 7. Defendant also asserts that
plaintiff cannot show his termination was because of his
disability as he has no evidence that any particular person,
much less the managers involved in the decision to terminate
him, knew that he had HIV. Id. at 9. Defendant notes
that plaintiff himself has conceded that he never disclosed
his HIV status to any of his supervisors or anyone else with
authority over his employment. Rec. Doc. 28-1 at 3. Defendant
argues that there is no evidence that the unnamed depot clerk
to whom plaintiff alleges he provided medical documents to
request time off read the documentation past the point of
determining the proposed dates of absence, noticed the
reference to HIV, and then informed the members of management
who made the decision to terminate plaintiff. Id. at
4. Even if the Court finds that plaintiff can establish a
prima facie case of discrimination, defendant asserts that it
can fulfill its burden of providing a legitimate
non-discriminatory reason for terminating plaintiff, namely
that plaintiff was an at-will probationary employee who had
accumulated excessive absences and was involved in a
preventable accident. Rec. Doc. 21-1 at 9-10. Defendant avers
that plaintiff cannot offer any evidence to show that
Transdev's reason for his termination was pretext for
discrimination and therefore cannot survive summary judgment.
Id. at 10-11. Defendant also argues that to the
extent plaintiff's claim is actually based on a failure
to accommodate theory, that claim fails as well because
plaintiff has admitted that he did not seek or need any
accommodation while employed by defendant. Id. at
11. Defendant asserts that it had no notice of
plaintiff's disability and therefore may not be held
accountable for failing to provide a reasonable accommodation
when it was not aware that any accommodation was needed, and
plaintiff did not request any. Id. at 12-13.
asserts that summary judgment is not proper as he has
provided sufficient evidence to establish a case for
disparate treatment based on his disability. Rec. Doc. 27.
Plaintiff states that he has met his burden of demonstrating
a prima facie case of discrimination. Id. at 3.
Plaintiff asserts that there is a genuine issue as to his
absences and whether the accident he was involved in was
actually preventable. Id. at 4-6. Plaintiff claims
that he did everything he was instructed to do in order to
prevent the accident and avers that this Court should take
all inferences in his favor. Id. at 4.
Transdev's policy requires employee termination in the
event of five total occurrences. Id. at 5. Plaintiff
avers that he complied with Transdev's attendance policy
by informing Transdev in advance of the dates he would not be
working due to medical appointments and a scheduled court
date. Id. Plaintiff also argues that there is a
genuine issue of material fact as to whether he was
terminated as a result of his disability given that he has
testified that he gave defendant documentation informing it
of his HIV-positive status in the form of medical records and
was terminated thereafter. Id. at 6. Furthermore,
plaintiff states that there is a genuine dispute as to
whether his termination was legitimate, and whether the
rationale given by defendant for his termination is
pretextual. Id. at 7-9. Plaintiff asserts that
defendant was on notice of his HIV-positive status when he
provided his medical records on May 10, 2016, which clearly
stated his HIV-positive status. Id. at 9. Plaintiff
states that defendant could have reasonably accommodated his
requests to be off work for particular days to undergo the
medical procedure. Id.
judgment is appropriate when “the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any 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) (quoting Fed.R.Civ.P. 56(c)). A genuine issue of
material fact exists if the evidence would allow a reasonable
jury to return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
the movant bears the burden of proof, it must
“demonstrate the absence of a genuine issue of material
fact” using competent summary judgment evidence.
Celotex, 477 U.S. at 323. But “where the
non-movant bears the burden of proof at trial, the movant may
merely point to an absence of evidence.” Lindsey v.
Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir.
1994). When the movant meets its burden, the burden shifts to
the non-movant, who must show by “competent summary
judgment evidence” that there is a genuine issue of
material fact. See Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986);
Lindsey, 16 F.3d at 618.
Plaintiff does not establish a disparate ...