United States District Court, E.D. Louisiana
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
GULF LOGISTICS OPERATING, INC.
ORDER AND REASONS
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.
BACKGROUND AND PROCEDURAL HISTORY
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.
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.
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.
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
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.
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
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
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).
There is a genuine dispute as to whether Mr.