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U.S. Equal Employment Opportunity Commission v. Gulf Logistics Operating, Inc.

United States District Court, E.D. Louisiana

April 4, 2019

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
v.
GULF LOGISTICS OPERATING, INC.

         SECTION “B” (3)

          ORDER AND REASONS

         Defendant Gulf Logistics Operating, Inc. (“Gulf Logistics”) filed the instant motion for summary judgment. Rec. Doc. 49. Plaintiff timely filed a response in opposition. Rec. Doc. 55. Defendant then sought, and was granted, leave to file a reply. Rec. Doc. 61. For the reasons discussed below, IT IS ORDERED that the motion for summary judgment is DENIED.

         FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         This action arises under Title I of the Americans with Disabilities Act (“ADA”) and Title I of the Civil Rights Act of 1991. Rec. Doc. 2 at 1. Plaintiff alleges that defendant discriminated against charging party Jason Gunderson when he was discharged because he was perceived to be disabled and a safety threat to himself and to others because of his situational depression. Id. Additionally, plaintiff avers that defendant unlawfully discriminated against Mr. Gunderson when he was forced to obtain a medical release before he could return to work because he requested a referral to the Employee Assistance Program (“EAP”), as this is a prohibited medical inquiry/exam under the ADA. Id. at 1-2.

         This Court previously denied defendant's motion to dismiss pursuant to FRCP 12(b)(6), finding that defendant was seeking dismissal of claims that were not actually pleaded in the complaint. Rec. Doc. 23. The Court held that plaintiff did not allege violations of 42 U.S.C. § 120121(A) & (B), but rather only alleged violations of 42 U.S.C. § 12102(3)(A) and 12112(d)(4)(A). Id. at 4-6.

         Defendant filed the instant motion for summary judgment, arguing that there is no evidence of unlawful discrimination against Mr. Gunderson because of an actual disability or being “regarded as” disabled, any alleged physical impairment was minor or transitory and did not qualify as a disability, and there is no evidence the medical examinations of Mr. Gunderson were improperly conducted. Rec. Doc. 49. Plaintiff filed a response in opposition arguing that summary judgment should not be granted because plaintiff can establish a prima facie case of discrimination under the burden-shifting framework of the ADA, defendant's actions were a pretext for disability discrimination, and forcing Mr. Gunderson to obtain medical clearance was a prohibited medical inquiry/exam under the ADA. Rec. Doc. 55. In its reply, defendant asserts that it has presented a legitimate, non-discriminatory reason for termination. Rec. Doc. 61.

         THE PARTIES' CONTENTIONS

         Defendant asserts that Mr. Gunderson denied having any diagnosis from his treating physician or having a diagnosis of depression and testified that he was able to perform work duties correctly. Id. at 4. Defendant states there was no “substantial limitation” on performing a major life activity and therefore no “actual” or “record of” disability. Id. at 5. Defendant also argues that plaintiff cannot show that Mr. Gunderson was “regarded as” disabled and that defendant has articulated a legitimate non-discriminatory reason for Mr. Gunderson's termination, specifically failing to perform an engine check and an overall decline in the quality of his work. Id. at 6. Defendant offers in support the testimony of Captains deBouchel and Bourque, who assessed Mr. Gunderson's job performance. Id. at 6-7. Defendant argues that plaintiff has not offered any evidence to refute the Captains' testimony. Id. at 7. Because Mr. Gunderson's alleged disability was transitory, lasting only about two months, defendant avers it does not qualify as a disability under the statute. Id. at 8-9. Finally, defendant asserts that the return to work examination of Mr. Gunderson was proper because of the significant weight the Coast Guard places on compliance with safety standards, and that it was conducted in accordance with Coast Guard regulations. Id. at 9-10.

         Plaintiff argues that summary judgment is not proper because there is a genuine dispute of material fact. Rec. Doc. 55. Plaintiff asserts it can establish a prima facie case of discrimination by showing that Mr. Gunderson was “regarded as” disabled, without having to provide evidence to show he was actually disabled. Id. at 12. Plaintiff states that the ADA was amended in 2008 and now covers individuals discriminated against because they are “regarded as having an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” Id. at 13. (citing Cannon v. Jacobs Field Services North America, Inc., 813 F.3d 586, 591 (5th Cir.2016) (citing 42 U.S.C. §§12102(1) (C), 3(1) (A))). Plaintiff states that Mr. Gunderson did not fail to do his duties and was cleared to work without any restrictions, yet defendant still perceived him to have mental and emotional issues affecting his job performance due to bias and stereotypes. Id. at 16-17. Plaintiff notes that prior to seeking EAP assistance, Mr. Gunderson had not been counseled or disciplined for failing to perform his duties but was told that he could not return to work afterwards without receiving a medical release “because of safety concerns.” Id. at 16. Plaintiff also states that it suspects defendant obtained documentation from the Captains to justify Mr. Gunderson's termination. Id. at 16. Plaintiff avers that it is not enough for defendant to simply state that it did not perceive Mr. Gunderson to be disabled when seeking summary judgement, and that defendant's behavior towards Gunderson demonstrates he was perceived to be a threat and unable to work because of his situational depression. Id. at 17. Plaintiff further asserts that defendant cannot demonstrate with objective evidence that Mr. Gunderson's impairment was both transitory and minor because situational depression, or adjustment disorder, can be a recurrent continuous condition that lasts longer than six months depending on the triggering situation, which is the case for Mr. Gunderson. Id. at 18. Furthermore, plaintiff asserts that even if defendant alleges the condition was transitory, it cannot assert that Mr. Gunderson's condition was minor if defendant determined that his continued presence at the job site was a safety concern and precluded his ability to work. Id. Additionally, plaintiff asserts that defendant cannot show that it made any efforts to determine whether this condition was transitory and minor as it did not seek assistance from Ann Ledet or Dr. McGraw to determine the extent of Mr. Gunderson's condition and failed to obtain objective evidence or documentation to support this defense. Id. at 18-19. Plaintiff asserts that whether Mr. Gunderson was qualified to perform the essential function of his job is a material fact in dispute as defendant's supporting evidence contains documents that were created after Mr. Gunderson's last day of work and not while he was employed. Id. at 19. Plaintiff avers that defendant's supporting documents do not contain evidence of Mr. Gunderson's failure to perform his duties but rather reflect that the Captains were concerned because he was emotional, and their unfounded fears led to his termination. Id. at 19-20. Plaintiff asserts that it should be left to the trier of fact to weigh witness testimony and determine who to believe. Id. at 21. Additionally, plaintiff asserts that defendant cannot establish a direct threat defense because under the ADA the defendant is required to make an individualized assessment to determine Mr. Gunderson poses a significant risk to the health and safety of himself and others which cannot be eliminated by reasonable accommodation. Id. Defendant did not make an independent assessment to make a fact intensive determination, and furthermore failed to make any effort to accommodate Mr. Gunderson. Id. at 22. If the Court finds that defendant met its burden of proving a legitimate non-discriminatory reason for Mr. Gunderson's discharge, plaintiff asserts that it has provided evidence to show that defendant's actions were a pretext to terminate Mr. Gunderson on the basis of his disability. Id. at 24. Plaintiff asserts that Mr. Gunderson was not given his official termination papers until two weeks after he was actually terminated in order to allow defendant to secure the documents it submitted in support of its reason for discharging Mr. Gunderson. Id. at 25. Also, plaintiff asserts the two additional documents defendant submitted that appear to support its direct threat defense were not received during the investigation and were drafted three years after the termination and a month after the EEOC issued its LOD. Id. Finally, plaintiff asserts that forcing Mr. Gunderson to obtain a medical clearance after he asked for an EAP referral is a prohibited medical inquiry/exam under the ADA. Id. at 26. Plaintiff states that a blanket requirement that all employees who seek an EAP referral must obtain a return to work examination is a prohibited medical inquiry where the defendant has failed to establish it is job-related and consistent with business necessity. Id. Plaintiff argues that defendant has failed to present evidence to show this and therefore it is a material fact in dispute and summary judgment is not proper. Id. at 27.

         LAW AND ANALYSIS

         Summary 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 (1986). When 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). All reasonable inferences must be drawn in favor of the nonmovant, but “a party cannot defeat summary judgment with conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence.” See Sec. & Exch. Comm'n v. Arcturus Corp., 912 F.3d 786, 792 (5th Cir. 2019).

         According to the ADA, no covered employer shall “discriminate against a qualified individual with a disability because of the disability of such an individual in regard to...discharge of employees.” 42 U.S.C. § 12112(a) (2009). The ADA defines disability as: “(A) a physical or mental impairment that substantially limits one or more major life activities . . .; (B) a record of such impairment; or (C) being regarded as having such an impairment....” 42 U.S.C. § 12102(1). In this case, plaintiff alleges Mr. Gunderson was discriminated against under subsection (C): because he was “regarded as having such an impairment, ” a violation of 42 U.S.C. §12102(3). In 2008, Congress passed the ADA Amendments Act (“ADAAA”) to “make it easier for people with disabilities to obtain protection under the ADA.” 29 C.F.R. § 1630.1(c)(4). “A principal way in which Congress accomplished that goal was to broaden the definition of disability.” Cannon, 813 F.3d at 590 (5th Cir.2016). Specifically, Congress noted that “the Supreme Court and EEOC had interpreted the “substantially limits” standard to be a more demanding one than Congress had intended.” Cannon, Inc., 813 F.3d at 590 (5th Cir. 2016); 42 U.S.C. § 12101 note (ADA Amendments Act of 2008) (expressly disapproving of prior Supreme Court decisions and EEOC interpretations of the “substantially limits” standard); Neely v. PSEG Tex., Ltd. P'ship, 735 F.3d 242, 245 (5th Cir.2013) (stating that the ADAAA was passed to correct the perceived misconception that the “substantially limits” standard is a demanding inquiry).

         A plaintiff trying to show a violation of the ADA using circumstantial evidence, as in this case, must satisfy the McDonnell Douglas burden-shifting framework. E.E.O.C. v. Chevron Phillips Chem. Co., LP, 570 F.3d 606, 615 (5th Cir.2009). To establish a prima facie discrimination under this framework plaintiff must show that: (1) he has a disability, or was regarded as disabled; (2) he was qualified for the job; and (3) he was subject to an adverse employment decision on account of his disability. EEOC v. LHC Grp., Inc., 773 F.3d 688, 697 (5th Cir.2014). If a plaintiff makes that showing, a presumption of discrimination arises, and the burden shifts to the employer to “articulate a legitimate non-discriminatory reason for the adverse employment action.” Chevron Phillips Chem. Co., LP, 570 F.3d at 615. At that point, the burden shifts back to the plaintiff to produce evidence from which a jury could conclude that the employer's articulated reason is pretextual. See id; Cannon v. Jacobs Field Servs. N. Am., Inc., 813 F.3d 586, 590 (5th Cir. 2016).

         A. There is a genuine dispute as to whether Mr. Gunderson'simpairment ...


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